T 
C<)4l5j 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


(J) 


JURISDICTION,  PRACTICE, 


AND 


PECULIAR   JURISPRUDENCE 


OF  THE 


COURTS    OF    THE    UNITED    STATES. 

BY 

BENJAMIN   ROBBINS   CURTIS,   LL.D. 

Sccontj  iStifttfln, 

REVISED  AND  ENLARGED. 

By  HENRY   CHILDS   MERWLV, 

AUTHOR  OB'  "the  PATENTABILITY  OF  INVENTIONS";    KDITOR  OF  "  MER- 

WIN  ON  EQUITY  AND   EQUITY  PLEADING,"  AND  LECTURER 

IN  THE  LAW  SCHOOL  OF  BOSTON  UNIVERSITY, 


BOSTON: 
LITTLE,   BROWN,   AND   COMPANY. 

1896. 


Copyright,  1880, 
By  Benjamin  R.  Curtis. 

Copyright,  1896, 
By  Little,  Bkown,  and  Company. 


T 

C94I5J 

)69^ 


University  Press: 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


PKEFACE 

TO  THE  SECOND  EDITION. 

The  changes  in  the  Statutory  Law  of  the 
Federal  Courts  have  been  so  great  since  the 
first  edition  of  this  book  was  published,  that 
I  have  been  obliged  to  omit  a  small  part  of  it, 
and  to  add  several  new  chapters  and  many  new 
paragraphs.  But  my  object  has  been  —  I  need 
hardly  say — to  meddle  as  little  as  possible  with 
the  work  of  so  great  a  lawyer  and  such  a 
master  of  legal  style  as  Judge  Curtis.  The 
notes  to  the  first  edition  —  with  one  or  two 
exceptions  —  were  added  by  the  editors  of  that 
edition.  Most  of  them  have  been  preserved  in 
the  present  edition,  and  the  new  notes  are  en- 
closed in  brackets.  And  so  as  to  the  text ;  — 
my  additions  are  enclosed  in  brackets,  and  all 
that  part  of  it  not  so  enclosed  is  the  work  of 
Judge  Curtis,  entirely  unaltered. 


729243 


IV  PREFACE. 

By  the  kindness  of  Judge  Thayer,  of  the 
Eighth  Circuit,  I  have  been  permitted  to  make 
free  use  of  his  admirable  monograph  on  the  Ju- 
risdiction of  the  Federal  Courts  ;  and  I  am  also 
indebted  to  Frederic  Dodge,  Esq.,  and  James  J. 
Storrow,  Jr.,  Esq.,  for  valuable  suggestions. 

The  first  edition  of  these  lectures  was  edited 

by  Judge  Curtis's  brother,  Mr.  G.  T.  Curtis,  and 

by  his  son,  who  bore  his  name,  who  was  also  a 

judge,  and  whose  early  death  cut  off  a  life  which 

was  dear  to  his  friends  and  of  high  value  to  the 

community. 

H.   C.   M. 

Boston,  June  1,  1896. 


PKEFACE 

TO  THE  FIRST  EDITION. 

These  Lectures  were  delivered  by  the  late 
Judo;e  Curtis  to  a  class  of  students  in  the 
Harvard  Law  School,  in  the  academic  year 
1872-73.  They  were  wholly  oral  and  extem- 
poraneous, the  lecturer  making  use  of  only  a 
few  brief  notes,  and  relying  chiefly  upon  his 
very  strong  memory,  which  never  failed  him 
in  the  statement  of  principles  or  the  citation  of 
authorities.  A  verbatim  report  was  made  of 
each  Lecture  by  a  short-hand  writer,  and  from 
the  manuscripts  written  out  by  him,  and  re- 
vised by  Judge  Curtis,  the  Lectures  are  now 
printed,  without  any  change  of  the  text. 

But  as  they  were  delivered  before  the  Re- 
vised Statutes  went  into  operation,  it  became 
necessary  to  refer  to  that  revision  in  the  notes, 
for  the  purpose  of  guiding  the  reader  to  the 
re-enactment  or  change  of  the  various  statutes 


Vi  PREFACE. 

cited  in  the  text.  Such  references  to  the  most 
recent  decisions  of  the  Supreme  Court  of  the 
United  States  have  also  been  added  as  seemed 
to  be  called  for. 

The  Lectures,  being  addressed  to  a  body  of 
students  just  beginning  their  inquiries  into  the 
Jurisdiction,  Practice,  and  Jurisj)rudence  of 
the  Federal  Courts,  are,  of  course,  somewhat 
elementary.  But  it  is  believed  that  they  are 
so  comprehensive  and  accurate  that  they  will 
form  a  useful  handbook  for  practitioners  of  any 
standing.  If  future  editions  shall  be  required, 
any  changes  in  the  law,  as  well  as  the  relevant 
decisions  of  the  Supreme  Court  of  the  United 
States,  from  time  to  time,  will  be  duly  noted. 

An  index  of  the  cases  cited,  and  a  full  index 
of  the  subjects  treated,  have  been  prepared. 
The  latter,  it  is  presumed,  will  greatly  assist 
the  reader  in  consulting  the  work  on  partic- 
ular points. 

GEORGE   TICKNOR  CURTIS. 
BENJAMIN   R.    CURTIS. 

Boston,  October,  1880. 


C  0  IS  T  E  N  T  S. 


— * — 

Page 
Table  of  Cases i^ 

CHAPTER  I. 
The  Supreme  Court  ^ 

CHAPTER  II. 
The  Supreme  Court  (Continued) 23 

CHAPTER  III. 
Appeals  from  Federal  Courts 64 

CHAPTER  IV. 
The  Circuit  Courts 10' 

CHAPTER  V. 
The  Circuit  Courts  (Continued) 160 

CHAPTER  VI. 
Removal  of  Suits 183 

CHAPTER  VII. 
Habeas  Corpus 217 


Vm  CONTENTS. 

CHAPTER   VIII.  Page 

Procedure  and  Practice 228 

CHAPTER  IX. 
Procedure  and  Practice  {Continued) 253 

CHAPTER  X. 
The  District  Courts.     Admiralty 279 

CHAPTER  XL 
Admiralty  (Continued) 294 

Index 317 


TABLE     OF    CASES. 


PAGE 

Ableman  v.  Booth  (21  Howard,  506) 276 

AUen  V.  Southern  California  Ry.  Co.  (70  Fed.  Rep.  725)       .     .  144 

Alley  V.  Edw.  Hines  Lumber  Co.  (64  Fed.  Rep.  903)    ....  216 

Ambler  v.  Eppiuger  (137  U.  S.  480) 158 

American  Construction  Company  v.  Jacksonville,  Tampa  &  Key 

West  Ry.  Co.  (148  U.  S.  372) 66,  76,  78 

American  Finance  Co.  v.  Bostwick  (151  Mass.  19) 210 

American  Sugar  Refining  Co.  v.  Johnson  (60  Fed.  Rep.  503)     .  71 

Amory  v.  Amory  (95  U.  S.  187) 215 

Amy  V.  Manning  (144  Mass.  153) 188 

Anderson  v.  Bowers  (43  Fed.  Rep.  321) 206 

V.  Carkins  (135  U.  S.  483) 52 

Andrews  v.  Essex  Company  (3  Mason,  16) 305 

Armstrong  f.  Ettlesohn  (36  Fed.  Rep.  209) 211,213 

V.  The  Treasurer  of  Athens  County  (16  Peters,  281)      .     .  36 

Arrowsmithu.  Harmoning  (118  U.  S.  194) 58 

V.  Nashville  &  D.  R.  R.  Co.  (57  Fed.  Rep.  165)     .     .     .     .  194 

Assessor  v.  Osbornes  (9  Wallace,  567) 178 

Atlantic  Works  v.  Tug  Glide  (157  Mass.  525  ;  s.  c.  159  Mass.  60)  289 

Ayers, /n  re  (123  U.  S.  443) 15 

Aztec  Mining  Co.  «.  Ripley  (151  U.  S.  79)       79 

Badaracco  v.  Cerf  (53  Fed.  Rep.  169) 81 

Baker  r.  White  (92  U.  S.  176) 95 

Balkam  i\  Woodstock  Iron  Co.  (154  U.  S.  177) 234 

Baltimore  &  Ohio  R.  R.  Co.  v.  Baugh  (149  U.  S.  368)      ...  235 

r.  Harris  (12  Wallace,  65) 150 

Bamberger  u.  Schoolfield  (160  U.  S.  149) 234 

Bank  of  the  United  States  v.  Deveaux  (5  Cranch,  61)  .     .     .     .  146 

y.  Planters  Bank  (9  Wheat.  904) 14 

Bank  of  Vicksburg  v.  Slocomb  (14  Peters,  60) 146 


X  TABLE   OF   CASES. 

PAGE 

Barling  v.  Bank  of  British  North  America  (50  Fed.  Rep.  260)    149, 157 

Barrel  v.  Transportation  Co.  (3  Wallace,  424) 99 

Barron  y.  Burnside  (121  U.  S.  186) 186 

Barry  v.  Mercein  (5  Howard,  103) 89 

Barth  v.  Coler  (60  Fed.  Rep.  466) 192 

Bellaire  v.  Baltimore  &  Ohio  R.  R.  (146  U.  S.  117)       ....  192 

Bennett  y.  Devine  (45  Fed.  Rep.  705) 211 

Bensinger  Self  Adding  Cash  Register  Co.   v.  National  Cash 

Register  Co.  (42  Fed.  Rep.  81) 134 

Bergemanny.  Backer  (157  U.  S.  655) 227 

Berger  v.  County  Commissioners  of  Douglas  County  (2  Mc- 

Crary,  483) 212 

Bernheim  y.  Birnbaum  (30  Fed.  Rep.  885) 211 

Berriau  v.  Chetvvood  (9  Fed.  Rep.  678) 207 

Bicycle  Stepladder  Co.  y.  Gordon  (57  Fed.  Rep.  529)    ....  116 

Blake  y.  McKim  (103  U.  S.  336) 133 

Blossom  y.  Railroad  Co.  (1  Wallace,  655) 97 

Blyew  y.  The  United  States  (13  WaU.  581) 14 

Bogart  y.  The  John  Jay  (17  Howard,  399) 303 

Boles,  In  re  (48  Fed.  Rep.  75) 217 

Bouahan  y.  Nebraska  (125  U.  S.  692) 41 

Bonner, /n  re  (151  U.  S.  242) 223 

Borgmeyery.  Idler  (159  U.  S.  408) 73 

Bors  y.  Preston  (111  U.  S.  252)       9 

Bowers  v.  Supreme  Council,  American  Legion  of  Honor  (45 

Fed.  Rep.  81) 198 

Boyce  v.  Grundy  (3  Peters,  210) 169,  170 

Boyd,  In  re  (49  Fed.  Rep.  48) 226 

Boyle  y.  Zacharie  (6  Peters,  635) 94 

Bradley  v.  Rhines  Adm'rs  (8  Wallace,  393) 159 

Brewster  v.  Tuthill  Spring  Co.  (34  Fed.  Rep.  769) 265 

Bridge  Proprietors  v.  Hoboken  Company  (1  Wallace,  116)   .     .  41 

Briggs,  In  re  (61  Fed.  Rep.  498) 102 

Brisenden  v.  Chamberlain  (53  Fed.  Rep.  307) 207 

Britton  v.  The  Venture  (21  Fed.  Rep.  928) 303 

Brodhead  y.  Shoemaker  (44  Fed.  Rep.  518) 209 

Browne  v.  Strode  (5  Cranch,  303) 139 

Buchanan, /?i  re  (158  U.  S.  31) 72 

Bucher  v.  Cheshire  R.  R.  Co.  (125  U.  S.  555) 234 

Bucklin  v.  United  States  (No.  2),  (159  U.  S.  682) 269 

Buckstaffy.  Russell  (151  U.  S.  626) 91 

Buell, /«re  (3  Dillon,  116) 267 


TABLE    OF    CASES.  XI 

PAGE 

Burbank  y.  Bigelow  (92  U.  S.  179) 129 

Burgess  v.  Seligman  (107  U.  S.  20) 2.-59 

Buirus, /n  re  (136  U.  S.  586) 218 

BushuelU'.  Kennedy  (9  Wall.  387) 1.58 

Busill  Carpet  Sweeper  Co.   v.  Goshen  Sweeper  Co.   (72  Fed. 

Rep.  545) 86 

Butler  V.  Boston  &  Savannah  Steamship  Co.  (130  U.  S.  527)     .  297 

California  y.  Southern  Pacific  Co.  (157  U.  S.  229) 6,19 

Campbell  i-.  Tlie  City  of  Haverhill  (155  U.  S.  610) 229 

Carey  v.  Houston  &  Texas  Central  Ry.  (150  U.  S.  170)    .     .     .       73 

Carico  v.  Wilmore  (51  Fed.  Rep.  196) 195 

Carson,  &c.  Lumber  Co.  v.  Holtzclaw  (39  Fed.  Rep.  578)        205,  211 

Cary  v.  Curtis  (3  Howard,  245) 135 

Central  Trust  Co.  of  New  York.  v.  Marietta,  &c.  R.  R.  Co.  (48 

Fed.  Rep.  850) 74 

Chapman  f.  Goodnow  (123  U.  S.  540) 58 

Chappell  V.  United  States  (160  U.  S.  499) 69,70 

V.  Waterworth  (155  U.  S.  102) 199 

Charleston  Bridge  Co.  c.  The  John  C.  Sweeney  (55  Fed.  Rep.  540)     285 
Cherokee  Nation  I'.  The  State  of  Georgia  (5  Peters,  1)      ...       17 

Chisholm  r.  The  State  of  Georgia  (2  Dallas,  419) 16 

Church  I'.  Shelton  (2  Curtis's  C.  C.  R.  271) 288 

Cilley,  In  re  (58  Fed.  Rep.  977) 209,  210 

Cincinnati,  Hamilton,  &c.  R.  R.  Co.  v.  McKeen  (149  U.  S.  259)       77 
Citizens'  Bank  v.  Board  of  Liquidation  (98  U.  S.  140)  ....       55 

City  Bankof  New  Yorky.  Skelton  (2  Blatch.  14) 276 

City  of  Detroit  v.  Detroit  City  Ry.  Co.  (54  Fed.  Rep.  1)  .      202,  205 

City  of  Norwich  (118  U.  S.  468) 297 

City  of  Ysleta  y.  Cauda  (67  Fed.  Rep.  6) 199 

Claasen,  In  re  (140  U.  S.  200) 67 

Claflin  V.  Houseman  (93  U.  S.  130) 272 

Clark  V.  Bever  (139  U.  S.  96) 187 

V.  Pennsylvania  (128  U.  S.  395) 94 

Clarke  y.  Mathewson  (12  Peters,  164) 140 

Clinton  V.  Englebrecht  (13  Wallace,  434) 106 

Coal  Company  I'.  Blatchford  (11  Wallace,  172)   .     .....     138 

Cohens  ^J.  The  State  of  Virginia  (6  W'heaton,  264)  .     .       25,30,212 

Collins  Mfg.  Co.  y.  Ferguson  (54  Fed.  Rep.  721) 136 

Columbus  Watch  Co.  r.  Robbins  (148  U.  S.  266)     ....      77,86 

V.  Robbins  (64  Fed.  Rep.  384) 86 

Colvinu.  Jacksonville  (158  U.  S.  456) 69 


xii  TABLE    OF   CASES. 

PAGE 

Commonwealth  of  Kentucky  v.  Dennison  (24  How.  66)    .     .     .  20 

Commouwealtli  u.  King  (150  Mass.  221) 286 

Connecticut  Mutual  Life  Ins.  Co.  v.  Union  Trust  Co.  (112  U.  S. 

250) 254,  257 

Conner  v.  Si^agit  Cumberland  Coal  Co.  (45  Fed.  Rep.  802)  .  201 
Consolidated  Store  Service  Co.  v.  Lamson  Consolidated  Store 

Service  Co.  (41  Fed.  Eep.  833) 153 

Continental  Store  Service  Co.  ;;■.  Clark  (100  N.  Y.  365)     ...  277 

Cope  u.  Vallette  Dry  Dock  Co.  (119  U.  S.  625) 291 

Cross  i;.  Burke  (146  U.  S.  82) 220 

Crowell  V.  Randall  (10  Peters,  368) 36 

Cunimings  v.  Jones  (104  U.  S.  419) 43 

Cunningham  v.  Hall  (1  Cliff.  43) 309 

Cutler  V.  Rae  (7  Howard,  729) 291 

Danace  v.  The  Magnolia  (37  Fed.  Rep.  367) 306 

Dashiell  v.  Grosvenor  (75  Off.  Gaz.  507) 78 

Davis  y.  Crouch  (94  U.  S.  514) 9.5 

V.  Geissler  (162  U.  S.  290) 70 

V.  Packard  (7  Peters,  281) 274 

Day  I'.  The  Newark  Manufacturing  Co.  (1  Blatch.  628)     ...  123 

De  Grooty.  The  United  States  (5  Wallace,  419) 105 

De  Lovio  v.  Boit  (2  Gallison,  398) 283,  290 

Dennistoun  u.  Draper  (5  Blatch.  336) 187 

De  Saussure  v.  Gaillard  (127  U.  S.  216) 53 

Deshler  17.  Dodge  (16  Howard,  622) 158 

Detroit  v.  Osborne  (135  U.  S.  492) 231 

Devoe  Manufacturing  Co.,  Petitioner  (108  U.  S.  401)  .     ...  298 

Dick  V.  Foraker  (155  U.  S.  404) 127 

Diggs  y.  Wolcott  (4  Cranch,  179) 174 

Donnelly  v.  United  States  Cordage  Co.  (66  Fed.  Rep.  613)    .     .  162 

Dorr  V.  the  Pacific  Insurance  Co.  (7  Wheaton,  582) 293 

Dower  v.  Richards  (151  U.  S.  658) 69 

Doyle  V.  Continental  Insurance  Co.  (94  U.  S.  535)    ...       185,187 

Dravor.  Fabel  (25  Fed.  Rep.  116) 257 

Duncan  !>.  Darst  (1  Howard,  301) 276 

Dunn  y.  Clarke  (8  Peters,  1) 140 

Dupasscur  Z7.  Rochereau  (21  Wall.  130) 212 

Dupont  y.  Vance  (19  Howard,  162) 290 

Eastman  v.  Sherry  (37  Fed.  Rep.  844) 122 

Edgerton  v.  Gilpin  (3  Woods,  277) 194 


TABLE    OF   CASES.  XIU 

PAGE 

Elliott  V.  Slmler  (50  Fed.  Rep.  454) 210 

EUis  V.  Page  (1  Tick.  45) •  60 

Erstein  v.  Kothschild  (22  Fed.  Rep.  61) 247 

Eslava  v.  Mazange  (1  Woods,  623) 256 

Evans  v.  Dilliugham  (43  Fed.  Rep.  177) 214 

£.r/>arteBeebes  (2  WaU.  Jr.  127) 258 

Boyer  (109  U.  S.  629) 286 

Clarke  (100  U.  S.  399) 218 

Newmau  (14  Wall.  152) 293 

Pheuix  Insurance  Co.  (lis  U.  S.  610) 297 

Railroad  Company  (95  U.  S.  221) 99 

Royall(117  U.  S.  254) 224 

Schollenberger  (96  U.  S.  369) 153 

Siebold  (100  U.  S.  371)       226 

Tom  Tong  (108  U.  S.  556) 217 

Yerger  (8  Wallace,  85) 219,  224 

Zelluer  (9  Wallace,  244) 105 

Farney  i'.  Towle  (1  Black,  350) 40 

Ferguson  v.  Ross  (38  Fed.  Rep.  161) 207 

Ferry  Company  v.  Beers  (20  How.  393) 303 

Fidelity  Trust  &  Safety  Vault  Co.  v.  Newport  News  &  M.  V. 

Co.  (70  Fed.  Rep.  403) 202 

Fifty  Thousand  Feet  of  Timber  (2  Lowell,  Dec.  64)      ....     291 

Fisher  v.  Williams  (67  Fed.  Rep.  384) 88 

Fisk  y.  Union  Pacific  Railroad  (6  Blatch.  362;  s.  c.  8  Blatch. 

243) 62 

I'.  Henarie  (142  U.  S.  459) 184,  185,  202,  207 

Folsom  I'.  United  States  (160  U.  S.  121) 82 

Ford  I'.  Surget  (97  U.  S.  594) 27 

Forgay  I?.  Conrad  (6  Howard,  201)  97 

Forsyth  v.  City  of  Hammond  (71  Fed.  Rep.  443) 239 

Eraser  r.  Jennison  (106  U.  S.  191) 192 

Frederich,/wre  (149  U.  S.  70) 225 

Freeman  r.  Howe  (24  Howard,  450) 140,141,276 

Furman  v.  Nichol  (8  Wallace,  44)        36,  41 

Gaines  I).  Fuentes  (92  U.  S.  10) 129,208 

Galveston,  &c.  Ry.r.  Gonzales  (151  U.  S.  496) 154 

Gann  v.  North  Eastern  R.  R.  Co.  (57  Fed.  Rep.  417)  .  .  .  .  206 
Garner  v.  Second  National  Bank  (66  Fed.  Rep.  369)  ....  193 
Garuett, /nre(141  U.  S.  I) 294,297 


xiv  TABLE    OF   CASES. 

PAGE 

GasFloat  WhittonNo.  2  ([1896]  Prob.  42) 291 

Gelpcke  I'.  Dubuque  (I  Wallace,  175) 238 

Gelstou  V.  Hoyt  (3  Wheaton,  246) 31,  274 

Georgia?;.  Grant  (6  Wall.  241) 20 

V.  Madrazo  (1  Peters,  110) 20 

Gleason  v.  Florida  (9  Wallace,  779) 42 

Gloucester  Insurance  Co.  v.  Younger  (2  Curtis  C.  C.  R.  322)    .  234 

Godfrey  ?;.  Terry  (97  U.  S.  171) 144 

Gold  Washing  &  Water  Co.  v.  Keyes  (96  U.  S.  199)     ....  212 

Gordon  v.  United  States  (2  Wallace,  561) 105 

Governor  of  Georgia  y.  Madrazo  (1  Peters,  110)        20 

Graham  v.  Stucken  (4  Blatch.  50) 273 

Grand  Trunk  Ry.  Co.  v.  Ives  (144  U.  S.  408) 235 

V.  Twitchell  (59  Fed.  Rep.  727) 200,  215 

Graver  u.  Faurot  (16  Sup.  Ct.  Rep.  799) 77 

Greeley  i;.  Lowe  (1.55  U.S.  .58) 127 

Greene  v.  Liter  (8  Cranch,  229)        121 

Gross  V.  George  W.  Scott  M'fg.  Co.  (48  Fed.  Rep.  35)      ...  136 

HabermanM'f'gCo., /nre  (147U.S.  525) 83 

Haire  v.  Rome  R.  R.  Co.  (57  Fed.  Rep.  321) 206 

Hale  V.  Akers  (132  U.  S.  5.54) 51 

t;.  Washington  Insurance  Co.  (2  Story  R.  176)      ....  284 

Hall  V.  Chattanooga  Agricultural  Works  (48  Fed.  Rep.  599)  201,  205 

Haller  v.  Fox  (51  Fed.  Rep.  298) ,     ....  306 

Hamblin  V.  Western  Land  Co.  (147  U.  S.  531) 58 

Hammond  u.  Johnston  (142  U.  S.  73) 51 

Hanrick  v.  Hanrick  (1.53  U.  S.  192) 184,  205 

Harold  v.  Iron  Silver  Mining  Co.  (33  Fed.  Rep.  529)    ....  210 

Hartell  v.  Tilghman  (99  U.  S.  547) 163 

Harvey  v.  Richmond,  &c.  R.  R.  Co.  (64  Fed.  Rep.  19)       ...  154 

Hastings  v.  Ames  (68  Fed.  Rep.  726) 73 

Havilah,  The  (48  Fed.  Rep.  684) 74 

Henderson  Bridge  Co.  v.  Henderson  City  (141  U.  S.  679)      .     .  53 

Henderson  i>.  Moore  (5  Cranch,  11) 94 

Hennessey  v.  The  Versailles  (1  Curtis's  C.  C.  R.  3.53)       ...  291 

Henry  u.Ricketts  (1  Cranch  C.  C.  580)       258 

Hermann  V.  Port  Blakeley  Mill  Co.  (69  Fed.  Rep.  646)     ...  285 

Hess  r.  Reynolds  (113  U.  S.  73) 188 

Hill  V.  Thompson  (94  U.  S.  322) 102 

Hobart  I'.  Drogan  (10  Peters,  108) 289 

Hodgson  V.  Bower  Bank  (5  Cranch,  303) 131 


TABLE    OF   CASES.  XV 

PAGE 

Hohorst, /r;?-e  (150U.  S.  653) 154,162 

Holmes  v.  Goldsmith  (147  U.  S.  150) 156 

Holt  y.  Bergevin  (60  Fed.  Kep.  1) .245 

Home  Insurance  Co.  I'.  Morse  (20  Wall.  445)        185 

Hope  Insurance  Co.  v.  Boardman  (5  Cranch,  57) 146 

Horner  y.  United  States  (143  U.  S.  570) 73 

Hotel  Co.  V.  Wade  (97  U.  S.  13) 152 

Houston?;.  Moore  (3  Wheat.  433) 29 

Huff  y.  Hutchinson  (14  Howard,  586) 140 

Humboldt  Lumber  Manufacturers'  Association  v.  Christopher- 
son  (73  Fed.  Rep.  239) 298 

Huntington  v.  Saunders  (72  Fed.  Rep.  10) 102 

Hyde  y.  Ruble  (104  U.  S.  407) 184 

/n  re  Ayers  (123  U.  S.  443) 15 

Boles  (  48  Fed.  Rep.  75) 217 

Bonner  (151  U.S.  242)       223 

Boyd  (49  Fed.  Rep.  48) 226 

Briggs  (61  Fed.  Rep.  498) 102 

Buchanan  (158  U.  S.  31) 72 

Buell  (3  Dillon,  116) 267 

Burrus  (136  U.  S.  586) 218 

Cilley  (58  Fed.  Rep.  977) 209,  210 

Claasen  (140U.  S.  200) 67 

Frederich  (149  U.  S.  70) 225 

Garnett  (141  U.  S.  1) 297 

Haberman  MTg  Co.,  Petitioner  (147  U.  S.  525)   ....       83 

Hohorst  (150  U.  S.  653) 154,  162 

Lennon  (150U.  S.  393)       67,220,224 

Loney  (134  U.  S.  372) 225 

Mills  (135  U.  S.  263) 72 

Morrison  (147  U.  S.  14) 283 

Neagle  (135  U.  S.  1) 218 

Palliser  (136  U.  S.  257)       267 

Pennsylvania  Company  (137  U.  S.  451) 190,204 

Receivership  of  Iowa  and  Minnesota  Construction  Co.  (6 

Fed.  Rep.  799) 20S 

Swan,  Petitioner  (150  U.  S.  637) 227 

The  Jarnecke  Ditch  (69  Fed.  Rep.  161) 210 

The  Louisville  Underwriters  (134  U.  S.  488) 293 

Tyler,  Petitioner  (149  U.  S.  164) 228,227 

Indianapolis,  &c.  R.  R.  Co.  i;.  Horst  (93  U.  S.  291) 247 


XVI  TABLE    OF   CASES. 

PAGE 

Insurance  Company  v.  Dunham  (11  Wall.  1) 290 

Insurance  Company  f.  Francis  ( 1 1  Wall.  210) 153 

Interior  Construction  &  Improvement  Co.  v.  Gibney  (160  U.  S. 

217) 124,  141 

Interstate  Commerce  Commission  v.  Atchison,  Topeka,  &c.  R. 

II.  Co.  (149  U.  S.  264)          106 

Iowa  V.  Illinois  (1.51  U.  S.  238) 15 

Ives  V.  Grand  Trunk  Ey.  Co.  (35  Fed.  Rep.  176) 249 

Jackson  r.  Chew  (12  Wheaton,  167) 233 

Jackson  &  Sharp  Co.  y.  Pearson  (60  Fed.  Rep.  113) 206 

Janney  v.  Columbian  Insurance  Co.  (10  Wheaton,  411)     .     .     .     293 

Jaruecke  Ditch, /h  re  (69  Fed.  Rep.  161) 210 

Jefferson  y.  Driver  (117  U.  S.  272) 188 

Jenkins  w.  Loewenthal  (110  U.  S.  222) 51 

Jewett  V.  Whitcomb  (69  Fed.  Rep.  417) 213,  214 

Johnson  i;.  Risk  (137  U.  S.  300) 39,55 

y.  Sayre  (158  U.  S.  109) 226 

Jones  V.  Andrews  (10  Wallace,  327) 136,  142 

— —  V.  Munger  (50  Fed.  Rep.  785) 86 

I'.  Robbins  (8  Gray,  329) 72 

I'.  United  States  (137  U.  S.  202) 280 

Joy  V.  Adelbert  College  (146  U.  S.  355)       195 


Kanouse  ?•.  Martin  (15  Howard,  198) 31,89,211 

Kansas  City  R.  R.  r.  Daughtry  (138  U.  S.  298)  .  .  .  .  197,201 
Kansas  City  &  T.  R.  R.  Co.  v.  Interstate  Lumber  Co.  (37  Fed. 

Rep.  3) 124,  210 

Kankanna  Water  Power  Co.  v.  Green  Bay,  &,c.  Canal  Co.  (142 

U.  S.  254,  269) 58 

Keith  V.  Clark  (97  U.  S.  454) 38 

Kellum  V.  Emerson  (2  Curtis's  C.  C.  R.  79) 305 

Kendall  y.  United  States  (12  Peters,  616) 135 

Kennedy  V.  Gibson  (8  Wallace,  498) 164 

Kentucky  v.  Dennison  (24  How.  66) 20 

King  ?•.  McLean  Asylum  (64  Fed.  Rep.  331) 208,223 

Kitchen  v.  Randolph  (93  U.  S.  86) 252 

Klinger  v.  State  of  Missouri  (13  Wall.  257) 39,  54 

Knox  County  !'  Ninth  National  Bank  (147  U.  S.  91)   ....     239 

Kohl  V.  The  T^nitod  States  (91  U.  S.  367) 29 

Kurtz  y.  Moffitt  (115  U.  S.  487) 208 


TABLE    OF   CASES.  xvii 

PAGE 

La  Montagne  v.  Harvey  Lumber  Co.  (44  Fed.  Rep.  645)  ...    211 

Lamar  I'.  Micou  (112  U.  S.  452) 138 

Lau  OwBew  (144  U.  S.  47) 76,78,221,222 

Leather  Manufacturers'  Natioual  Bank  ;-.  Cooper  (120  U.  S.  778)  212 
Lehigh  Mining  &  Mfg.  Co.  v.  Kelly  (160  U.  S.  327)     ....     157 

Lennon,  In  re  (150  U.  S.  393) 67,  220,  224 

Leon  f.  Galceran  (11  Wallace,  185) 275,288 

Lewi.s,  Trustee  v.  The  United  States  (92  U.  S.  618) 131 

Life  Insurance  Co.  v.  Scliaefer  (94  U.  S.  457) 257 

Lincoln  (--.  Power  (151  U.  S.  436) 247 

Littlefield  v.  Perry  (21  Wallace.  205) 1G3 

Liverpool  Steam  Co.  v.  Phenix  Insurance  Co.  (129  U.  S.  397)  .     235 

Logan  V.  United  States  (144  U.  S.  263) 267 

Loney, /«  7-e  (134  U.  S.  372) 225 

Louisville  &  Nashville  R.  R.  Co.  i'.  Roehling  (11  111.  App.  264)     211 

Louisville  Underwriters,  In  re  (134  U.  S.  488) 293 

Lowenstein  y.  Carey  (12  Fed.  Rep.  811) 265 

McBurney  f.  Carson  (99  U.  S.  567) 127 

McCartee  v.  Chambers  (6  Wend.  649) 143 

McClung  V.  Silliman  (6  Wheat.  598) 276 

McComb  V.  Commissioners  of  Knox  County  (91  U.  S.  1)  .     .     .       95 

McCormick  Co.  r.  Walthers  (134  U.  S.  41) 122,124 

McDonald  t;.  Hovey  (110  U.  S.  619) 87 

McGourkey  I'.  Toledo  &  Ohio  Ry.  (146  U.  S.  536) 96 

McKim  V.  Voorhies  (7  Cranch,  279) 174,  276 

McKinlay  w.  Morrish  (21  Howard,  343) 315 

McLish  y.  Roff  (141  U.  S.  661) 67,71,199 

McMuUen  v.  Northern  Pacific  Ry.  Co.  (57  Fed.  Rep.  16)  .     .     .     197 

McNutt  i\  Bland  (2  How.  9) 139 

Macomber  y.  Thompson  (1  Sumner,  384) 304 

Maguire  v.  Card  (21  Howard,  248) 289 

V.  Tyler  (8  Wallace,  650) 38 

Maisonnaire  v.  Keating  (2  Gallison,  336) 292 

Manchester  i".  Massachusetts  (139  U.  S.  264) 298,300 

Mauley  i;.  Olney  (32  Fed.  Rep.  708) 187 

Mannings.  Amy  (140  U.  S.  137) 188,201 

Mansfield  Cold  Water  &  Lake  Michigan  Ry.  v.  Swan  (111  U.  S. 

379) 124 

Marbury  y.  Madison  (1  Cranch,  137)  ....  7,8,9,11,272,273 
Harden  v.  Campbell  Printing  Press,  &c.  Alfg.  Co.  (67   Fed. 

Rep.  809) 86 

6 


XVm  TABLE    OF   CASES. 

PAGE 

Markliam  y.  United  States  (160  U.  S.  319) 268 

Markwood  v.  Southern  Ry.  Co.  (65  Fed.  Kep.  817) 187 

Marquardt  v.  French  (53  Fed.  Rep.  603) 306 

Marsh  u.  Nichols  (140  U.  S.  344) 163 

Marshall  I'.  Plohiies  (141  U.  S.  589) 197,211 

Martin  o.  Baltimore  &  Ohio  R.  R.  Co.  (151  U.  S.  673)  197,  198, 

202,  215 

Martin  v.  Hunter  (1  Wheatou,  304) 25,  61 

y.  Snyder  (148  U.  S.  663) 189 

Mason  v.  The  Blaireau  (2  Cranch,  264) 132 

Masterson  y.  Herndou  (10  Wallace,  416) 98,99 

Mattlngly  v.  North  Western  Virginia  R.  R.  Co.  (158  U.  S.  53)      200 
Maxwell  v.  Atchison,  &c.  R.  R.  Co.  (34  Fed.  Rep.  286)     ...    211 

y.  Newbold,  (18  Howard,  511) 40 

Mayuard  v.  Hecht  (151  U.  S.  324) 69 

Mayor  y.  Cooper  (6  Wallace,  247) 62 

Mercantile  Trust  Co.  v.  Kanawha,  &c.  Ry.  Co.  (39  Fed.  Rep. 

337) 155 

Merchants' Bank  V.  State  Bank  (3  Cliff.  201) 265 

V. (10  Wall.  635) 250,  252 

Merchants'  Cotton  Press  &  Storage  Co.  v.  Insurance  Company 

of  North  America  (151  U.  S.  368) 192 

Meriwether  I'.  Muhleu  burg  County  Court  (120  U.  S.  354)     .     .     252 

Messenger  y.  Mason  (10  Wall.  507) 40 

Mexican  Central  Ry.  Co.  v.  Piukney  (149  U.  S.  194)    .     .      142,  245 

Miller  y.  Joseph  (17  Wall  655) 30 

y.  New  York  (109  U.  S.  385) 286 

y.  Texas  (153  U.  S.  .535) 54 

Mills, /n  re  (135  U.  S.  263) 72 

Milner  v.  Meek  (95  U.  S.  252) 91,  102 

Missouri  Pacific  Ry.  Co.  y.  Chicago  &  Alton  R.  R.  Co.  (132 

U.S.  191) 247 

Mitchell  y.  Clark  (110  U.  S.  6.33) 31 

y.  Smale  (140  U.  S.  406) 212 

Montalet  v.  Murray  (4  Cranch,  46) 142 

Moore  r.  Robhin.s  (18  Wall.  588) 95 

y.  United  States  (160  U.  S.  268) 268 

Morewood  v.  Enequist  (23  How.  491) 287 

Morgan  v.  Morgan  (2  Wheat.  21)0) 140 

y.  Thornhill  (11  Wall.  65) 102 

Morrison, /h  re  (147  U.  S.  14) 283 

y.  Watson  (154  U.  S.  Ill) 56 


TABLE   OF   CASES.  XIX 

PAGE 

Moses  V.  Lawrence  County  Bank  (149  U.  S.  298) 235 

MuUer  y.  Dows  (94  U.  S.  444) 127,148,151,155 

Mumm  V.  Oweus  (2  Dill.  475) 256 

Murdock  v.  The  City  of  Memphis  (20  Wall.  590)   32,  46,  48,51,  55,  58 
Murray  I'.  Hobokeu  Land  Co.  (18  How.  272) 166 

Nash  y.  Lull  (102  Mass.  60) 277 

Nashua  &  Lowell  R.  K.  v.  Boston  &  Lowell  R.  R.  (136  U.  S. 

356) l-''! 

National  Bank  of  Aurora  w.  Basuier  (65  Fed.  Rep.  58)      ...  235 
National  Typographic  Co.  v.  New  York  Typographic  Co.  (44 

Fed.  Rep.  711) 153 

Neagle,  Znre  (135  U.  S.  1) 218 

Neely.  Pennsylvania  Co.  (157  U.  S.  153) 200 

Neilson  v.  Lagow  (12  Howard,  98) 38,  54 

Neves  v.  Scott  (13  Howard,  272) 241 

Nevittv.  Clarke  (Olcott's  Admiralty  R.  316) 316 

Newgass  v.  City  of  New  Orleans  (33  Fed.  Rep.  196)     ....  156 

New  Jersey  v.  New  York  (5  Peters,  283) 21 

New  Jersey  Steam  Navigation  Co.  v.  The  Merchants'  Bank 

(6  How.  344) 287 

Newman,  iixyjflrte  (14  Wall.  152)       293 

New  Orleans  u.  Benjamin  (153  U.  S.  411) 157 

y.  New  Orleans  Water  Works  (142  U.  S.  79) 58 

y.  Winter  (1  Wheaton,  91) 138,216 

New  York  y.  Eno  (155  U.  S.  89) 225 

Nichols  V.  Squire  (5  Pick.  168) 60 

Nimick  v.  Coleman  (95  U.  S.  266) 102 

Nolde  V.  Mas.sachusetts  Benefit  Association  (48  Fed.  Rep.  337)  201 

Northern  Pacific  R.  R.  Co.  t-.  Amato  (49  Fed.  Rep.  881)  .     .     .  74 

y.  Hogan  (63  Fed.  Rep.  102) 235 

Northwestern  Insurance  Company,  The  (2  Curtis  C.  C.  R.  212)  123 

Norton  y.  Shelby  County  (118  U.  S.  425) 252 

Norwich  Company  y.  Wright  (13  Wall.  104) 296 

Oakesy.  Richardson  (2  Lowell's  Dec.  173) 287 

Oakley  y.  Goodnow  (118  U.  S.  43) 188 

Ober  V.  Gallagher  (93  U.  S.  199) 127 

Ohio  &  Mississippi  R.  R.  Co.  v.  Wheeler  (1  Black,  286)    .     ...  147 
Ohio  Life  &  Trust  Co.  y.  Debolt  (16  Howard,  432)  .     .     .      236,  239 

O'Neil  y.  Vermont  (144  U.  S.  323) 58 

Ornelas  v.  Ruiz  (161  U.  S.  502) 225 


XX  TABLE  OF  CASES. 

PAGE 

Osborn  v.  The  Bank  of  the  United  States  (9  Wheat.  738)    11,  14,  15, 

62,  161 
Osborne  v.  City  of  Detroit  (28  Fed.  Rep.  385) 247 

Pacific  Removal  Cases  (115  U.  S.  1) 210,214 

Palliser,  In  re  (136  U.  S.  257) 267 

Parcels  r.  Johnson  (20  Wallace,  653) 29,94 

Pasteur  v.  Blount  (51  Fed.  Rep.  610) 83 

Peck  V.  Jenuess  (7  Howard,  625) 174 

Peele  v.  Merchants  Insurauce  Co.  (3  Mason,  27) 284 

Pennsylvania  v.  Kosloff  (5  S.  &  R.  545) 273 

Pennsylvania  Company  v.  Bender  (148  U.  S.  255) 203 

Pennsylvania  Company, /n  re  (137  U.  S.  451)      ....       190,204 

Pepke  V.  Cronan  (155  U.  S.  100) 225 

Phipps  y.  Harding  (70  Fed.  Rep.  468) 235 

Pierce  v.  Cox  (9  Wallace,  786) 99 

Pile-Driver  E.  0.  A.  (69  Fed.  Rep.  1005) 306 

Piquiguot  I).  Pennsylvania  R.  R.  Co.  (16  Howard,  104)     ...     132 
Postal  Telegraph  Cable  Co.  v.  Alabama  (155  U.  S.  482)  ...     134 

Postmaster  Generals.  Early  (12  Wheat.  136) 130 

Potts  iJ.  Accident  Insurance  Co.  (35  Fed.  Rep.  566)      ....       12 

Provident  Savings  Society  r.  Ford  (114  U.  S.  635) 212 

Putnam  v.  Ingraham  (114  U.  S.  57) 188 

Railroad  Company  r.  Koontz  (104  r.  S.  5) 153 

V.  Maryland  (20  Wall.  643) 50 

Railway  Company  I!.  Whitton's  Adm'rs  (13  Wallace,  270)    .     .  151 
Receivership   of   Iowa  &   Minnesota  Construction  Co.,  In  re 

(6  Fed.  Rep.  799) 208 

Reed  v.  Reed  (31  Fed.  Rep.  49) 189 

Reeves  v.  Corning  (51  Fed.  Rep.  774) 205 

Removal  Cases  (100  U.  S.  457) 134 

Rhode  Island  w.  Mas.sachusetts  (12  Peters,  657) 21 

Rice  V.  Adler-Goldman  Commi.ssion  Co.  (71  Fed.  Rep.  151)       .  240 

V.  Garnhart  (34  Wis.  4.53) 277 

Richmond  i;.  Atwood  (52  Fed.  Rep.  10) 86 

r.  The  City  of  Milwaukee  (21  Howard,  391) 93 

Riggs  V.  Johnson  County  (6  Wallace,  166) 168 

Rike  y.  Floyd  (42  Fed.  Rep.  247) 190 

Ritchie  v.  Mauro  (2  Peters,  243) 89 

Rivers  v.  Bradley  (53  Fed.  Rep.  305) 216 

Roach  i;.  Chapman  (22  Howard,  129) 303 


TABLE   OF   CASES.  XXI 

PAGE 

Robertson  v.  Cease  (97  U.  S.  646) 144 

Robluson  V.  Campbell  (3  Wheaton,  212) 169 

V.  Maudell  (3  Cliff.  169) 256 

Roby  V.  Colehour  (146  U.  S.  153) 41,  55 

Rogers  v.  Van  Nortwick  (45  Fed.  Rep.  513) 188 

Roilius  V.  Chaffee  County  (34  Fed.  Rep.  91) 156 

Romie  v.  Casanova  (91  U.  S.  379) 212 

Root  t\  Railway  Company  (105  U.  S.  189) 163 

Rosenbaum  v.  Bauer  (120  U.  S.  450) 210 

Rouse  ?;.  Horusby  (161  U.  S.  588) 117,281 

Rowe  V.  The  Granite  Bridge  Co.  (21  Pick.  344) 286 

Royall,  ^x/)arte  (117  U.  S.  254) 224 

Ruby  Canon  Gold  Mining  Co.  v.  Hunter  (60  Fed.  Rep.  305)      .  201 

Rycroft  v.  Green  (49  Fed.  Rep.  177) 201 

Sage  y.  Railroad  Company  (96  U.  S.  712) 97 

St.  Clair  County  t;.  Lovingston  (18  Wall.  628) 29,95 

St.  Louis,  &c.  R.  R.  Co.  v.  McBride  (141  U.  S.  127)      .     .     .     .  124 
St.  Louis  &  San  Francisco  Ry.  Co.  v.  James  (161  U.  S.  545)    149, 151 

Sampson  v.  Welsh  (24  Howard,  207) 92 

Sargent  v.  Biddle  (4  Wheaton,  508) 263 

Sayles  v.  Northwestern  Insurance  Co.  (2  Curtis,  C.  C.  R.  212)  .  123 

Schackerv.  Hartford  Fire  Ins.  Co.  (93  U.  S.  241) 91 

Schunk  V.  Moline,  &c.  Co.  (147  U.  S.  500) 122 

Schwenk  &  Co.  v.  Strang  (59  Fed.  Rep.  209) 205 

Scott  V.  Armstrong  (146  U.  S.  499) 245 

u.  The  Ira  Chaffee  (2  Fed.  Rep.  401) 287 

Searl  v.  School  District  No.  2  (124  U.  S.  197) 210 

Second  National  Bank  of  Aurora  v.  Basuier  (65  Fed.  Rep.  58)  .  235 
Shattuck  0.  North  British  &  Mercantile  Ins.  Co.  (58  Fed.  Rep. 

609) 194,  216 

Shaw  i;.  Quincy  Mining  Co.  (145  U.  S.  444) 154 

Sheffield  Furnace  Co.  w.  Witherow  (149  U.  S.  574) 12 

Sheldon  u.  Sill  (8  Howard,  441) 157,158 

Shields  y.  Barrow  (17  Howard,  141) 137 

Shute  V.  Keyser  (149  U.  S.  649) 79 

Simpson  v.  Greeley  (20  Wallace,  152) 99 

Sinclair  y.  Pierce  (.50  Fed.  Rep.  851) 188 

Sipperley  v.  Smith  (155  U.  S.  86) 98 

Slemmer's  Appeal  (58  Pa.  St.  155) 277 

Smale  v.  Mitchell  (143  U.  S.  99) 247 

Smith  y.  Atchison,  &c.  R.  R.  Co.  (64  Fed.  Rep.  1) 141 


XXU  TABLE    OF    CASES. 

PAGE 

Smith?;.  Gale  (137  U.  S.  577) 87 

y  Greenhow  (109  U.  S.  669) 213 

U.Lyon  (133  U.  S.  315) 134 

i;.  McKay  (16  Supr.  Ct.  Rep.  490) 69 

y.  Sargent  Mfg.  Co.  (67  Fed.  Kep.  801 ) 162 

Socie'te'  Auonyme  du  Filtre  Chamberland  Systeme  Pasteur  v. 

Blount  (51  Fed.  Rep.  610) 83 

Southard  v.  Brady  (36  Fed.  Rep.  560) 310 

Southern  Pacific  Co.  ?;.  Denton  (146  U.  S.  202)  ....  125,215 
Southwestern  Telegraph  &  Telephone  Company  v.  Robinson 

(48  Fed.  Rep.  769) 200 

Sowles  V.  First  National  Bank  of  St.  Albans  (46  Fed.  Rep.  513)  214 

V.  Witters  (43  Fed.  Rep.  700) 213 

Spies  y.  Illinois  (123  U.  S.  131) 259 

Springer  y.  Howes  (69  Fed.  Rep.  849) 198 

Stanbrough  v.  Cook  (38  Fed.  Rep.  369) 192 

Starin  y.  New  York  (115  U.  S.  248) 212 

State  of  Georgian.  Grant  (6  Wall.  241) 20 

State  of  Texas  y.  White  (7  Wall  700) 17 

Steamboat  Orleans  y.  PhcEbus  (11  Peters,  175)     ....      288,296 

Stephens  v.  Beruays  (41  Fed.  Rep.  401 ;  s.  c.  44  Fed.  Rep.  642)  281 

Stevens  y.  Nichols  (130  U.  S.  230) 215 

Stewart  y.  Kahn  (11  Wallace,  502) 4.5,60 

W.Potomac  Co.  (12  Fed.  Rep.  296) 275 

Stokes  V.  United  States  (60  Fed.  Rep  597) 72 

Stone  y.  South  Carolina  (117  U.  S.  430) 197,215 

Stovall  V.  Banks  (10  Wallace,  583) 97 

Strauderi'.  West  Virginia  (100  U.  S.  303) 196 

Swan, /n  re  (150  U.  S.  637) 227 

Swift  17.  Tyson  (16  Peters,  1) 235 

Tarbel's  Case  (13  Wall.  397) 276 

Tehan  v.  First  National  Bank  (39  Fed.  Rep.  577) 214 

Telegraph  Co.  v.  Rogers  (93  U.  S.  565) 91 

Teunessee  !'.  Bank  of  Commerce  (152  U.  S.  454) 213 

r.  Davis  (100  U.  S.  257) 196 

V.  Union  &  Planters  Bank  (152  U.  S.  454) 199 

Terry  v.  Hatch  (93  U.  S.  44) 91 

Texas  v.  Chiles  (21  Wall.  488) 257 

y.  White  (7  Wall.  700) 17 

Texas  &  Pacific  Ry.  Co.  y.  Cox  (145  U.  S.  593)    .     .....  213 

The  Amiable  Isabella  (6  Wheatou,  1 ) 313 


TABLE    OF   CASES.  XXUl 

PAGE 

The  Baltimore  &  Ohio  R.  R.  Corp.  v.  Harris  (12  Wallace,  65)  .  150 

The  Bank  of  the  United  States  u.  Deveaux  (5  Cranch,  61)    .     .  146 

v.  The  Planters  Bank  (9  Wheat.  904) 14 

The  Bank  of  Vicksburs  c.  Slocomb  (14  Peters  60) 146 

The  Belfast  (7  Wallace,  624) 274,  287,  289 

TheBelgeuland  (114  U.  S.  355) 293 

The  Charles  Morgan  (115  U.  S.  69) 315 

The  Cherokee  Nation  v.  The  State  of  Georgia  (5  Peters,  1)  .     .  17 

The  City  of  Norwalk  (55  Fed.  Rep.  98 ;  s.  c.  61  Fed.  Rep.  364)  299 

TheCityof  Norwich  (118  U.  S.  468) 297 

The  CitV  of  Pittsburgh  (45  Fed.  Rep.  699) 306 

The  City  of  Toledo  (73  Fed.  Kep.  220) 285 

The  Commander-in-Chief  (MVallace,  43) 315 

The  Continental  Store  Service  Co.  r.  Clark  (100  N.  Y.  365)  .     .  272 

The  Corsair  (145  U.  S.  335) 299,315 

The  D.  R.  Martin  (91  U.  S.  365) 92 

The  Daniel  Ball  (10  Wall.  557)       285 

The  Dos  Hermanos  (2  Wheaton,  76) 313 

The  Eagle  (8  Wallace,  15) 284,285 

The  Eclipse  (135  U.  S.  599) 305 

The  Ferry  Co.  v.  Beers  (20  Howard,  393) 303 

The  Genesee  Chief  (12  Howard,  443) 285 

The  George  Dumois  (68  Fed.  Rep.  926)       289 

The  Glenmont  (34  Fed.  Rep.  402) 303 

The  Great  Western  (118  U.  S.  520) 297 

The  Harrisburg  (119  U.  S.  199) 299 

The  Havilah  (48  Fed.  Rep.  684) 74,311 

The  Hine  v.  Trevor  (4  Wallace,  555)       284 

The  Hope  Insurance  Co.  v.  Boardman  (5  Cranch,  57)  .     .     .     .  146 

The  Hungaria  (41  Fed.  Rep.  109 ;  s.  c.  42  Fed.  Rep.  510)     .     .  298 

Tlie  Independence  (2  Curtis  C.  C.  R.  350) 291 

The  Insurance  Co.  «.  Dunham  (11  WaUace,  1) 290 

The  Invincible  (1  Wheaton,  238) 300,301 

The  J.  E.  RumbeU(148U.  S.  1) 289 

The  Jarnecke  Ditch,  Tn  re  (69  Fed.  Rep.  161) 210 

The  Joseph  Nixon  (43  Fed.  Rep.  926) 306 

The  Kate  O'Neil  (65  Fed. Rep.  Ill) 303 

TheLarch  (2Curtis'sC.  C.  R.  427) 309 

The  Livius  (47  Fed.  Rep.  825) 293 

The  Lottawanna  (21  Wallace,  558) 289,  303,  309 

The  Louisville  Underwriters,  In  re  (134  U.  S.  488)       .     .     •     .  293 

TheMabey  (10  WaU.  419) 315 


XXIV  TABLE    OF    CASES. 

PAGE 

The  MagnoUa  (37  Fed.  Eep.  367)       306 

The  Main  (51  Fed.  Rep.  954) 286 

The  Marengo  (1  Lowell  Dec.  52) 296 

TheMonte  A.  (12red.  Kep.  331) 287 

The  Montello  (20  Wallace,  430) 286 

The  Moses  Taylor  (4  Wallace,  411) 288 

The  North  Western  Insurance  Co.  (2  Curtis's  C.  C.  R.  212)       .  123 

The  Norwich  Co.  v.  Wright  (13  Wallace,  104) 296 

The  Octavia  (1  Mason,  149) 316 

The  Ohio  &  Mississippi  Ry.  Co.  v.  Wheeler  (1  Black,  286)    .     .  147 

The  Phiiadelphian  (60  Fed.  Rep.  423) 312 

The  Plymouth  (3  Wallace,  20) 297 

The  Progre.sso  (46  Fed.  Rep.  292) 306 

The  Rio  Grande  (19  Wallace,  178) 91 

TheRoanoke(50Fed.  Rep.  574) 292 

The  Sally  (2  Cranch,  406) 302 

The  Sarah  Ann  (2  Sumner,  206) 306,  310 

The  Scotland  (105  U.  S.  24) 297 

(118  IT.  S.  507) 297 

The  Sewing  Machine  Companies  (18  Wallace,  553)      ....  133 

The  State  of  California  (49  Fed.  Rep.  172) 311 

The  State  of  Georgia  y.  Grant  (6  Wallace,  241) 20 

The  State  of  Texas  y.  White  (7  Wallace,  700) 17 

The  United  States  v.  Adams  (9  Wallace,  661) 105 

V.  Adams  (6  Wallace,  101 ) 99 

V.  Avery  (13  Wallace,  201) 94 

V.  Gomez  (3  Wallace,  752) 99 

1-.  Jahn  (155  U.  S.  109) 71 

y.  La  Vengeance  (2  Dallas,  297) 302 

?;.  Reid(  12  Howard,  391) 246 

(See  also  United  States.) 

The  Wanata  (95  U.  S.  600) 297 

The  Water  Witch  (1  Black  494) 305 

The  Welhaven  (55  Fed.  Rep.  80)        293 

The  Willamette  (70  Fed.  Rep.  874) 299 

The  Wivauhoe  (26  Fed.  Rep.  927) 286 

Thompson  ;;.  Butler  (95  U.  S.  694) 91 

y.  Dean  (7  Wallace,  342) 97 

V.  Pool  (70  Fed.  Rep.  725)       117,213,281 

Thurber  V.  Miller  (67  Fed.  Rep.  371) 192 

Tod  V.  Cleveland  &  M.  V.  Ry.  Co.  (65  Fed.  Rep.  145)     200,  203,  216 

Todd  V.  Daniel  (16  Peters,  521) 98 


TABLE    OF    CASES.  XXV 

PAGE 

Toland  y.  Sprague  (12  Peters,  300) 123 

Torrence  v.  Sliedd  (144  U.  S.  527) 192 

Towu  of  Soutli  Ottawa  v.  Perkius  (94  U.  S.  260) 252 

Town  of  Venice  v.  Murdock  (92  U.  S.  494) 233 

Townsend  v.  Todd  (91  U.  S.  452) 233 

Trade-Mark  Cases  (100  U.  S.  82) 278 

Trebilcock  v.  Wilson  (12  Wallace,  694) 46 

Troy  r.  Evans  (97  U.S.  1) 91 

Twitchell  f.  The  Commonwealth  (7  Wall.  321) 41,42 

Tyler, /«  re  (149  U.S.  164) 226,227 

Union  Mutual  Life  Insurance  Co.  i;.  Kirchoff  (160  U.  S.  374)    .  94 

Union  Pacific  Ry.  Co.  v.  Botsford  (141  U.  S.  250) 247 

Union  Pacific  R.  R.  i'.  McComb  (1  Fed.  Rep.  799) 214 

United  States  v.  Adams  (6  Wallace,  101) 99 

V.  Adams  (9  Wallace,  661) 105 

V.  American  Bell  Telephone  Co.  (29  Fed.  Rep.  17)  .     .     .  153 

V.  American  Bell  Telephone  Co.  (159  U.  S.  548)  ....  82 

u.  Arwo  (19  Wallace,  486) 114 

I'.  Avery  (13  Wallace,  251) 94 

V.  Bornemann  (35  Fed.  Rep.  824) 268 

r.  Church  of  the  Holy  Trinity  (36  Fed.  Rep.  303)     ...  281 

V.  Davis  (6  Fed.  Rep.  682) 268 

r.  Dawson  (15  Howard,  467) 113 

V.  Farragut  (22  Wallace,  406) 302 

V.  Gomez  (3  Wallace,  752) 99 

V.  Jackson  (2  Fed.  Rep.  502) 268 

y.  Jahn  (155  U.  S.  109) 71 

r.  Jones  (131  U.  S.  1) 281 

W.Jones  (119  U.  S.  477) 105 

V.  La  Vengeance  (3  Dallas,  297) 302 

r.  Mooney  (116  U.  S.  104)       281 

V.  Morrissey  (32  Fed.  Rep.  147) 268 

I-.  Ortega  (11  Wheat.  467) 9,13,273 

I'.  Pridgeon  (153  U.  S.  48) 222 

r.  Ralston  (17  Fed.  Rep.  895) 258 

V.  Ravara  (2  Dallas  297) 272 

y.  Reid  n  2  Howard  361) 246,269,270 

i'.  Rich  (135  U.  S.  467) 209 

?;.  Sayard  (160U.  S.  493) 120 

r.  Shaw  (39  Fed.  Rep.  4.33) 120 

V.  Simmons  (96  U.  S.  36) 268 


XXVI  TABLE    OF   CASES. 

PAGE 

United  States  y.  Slenker  (32  Fed.  Rep.  691) 268 

V.  Southern  Pacific  Ry.  Co.  (49  Fed.  Rep.  297)     .     .       142,  154 

V.  Sutton  (47  Fed.  Rep.  129) 68 

V.  Texas  (143  U.  S.  621) 16 

1-.  Tynen  (11  Wallace,  92) 60 

V.  Whitcomb  Metallic  Bedstead  Co.  (45  Fed.  Rep.  89)       .  281 

Upshur  County  v.  Rich  (135  U.  S.  467) 209 

Venice  v.  Murdock  (92  U.  S.  494) 233 

Virginia  r.  Paul  (148  U.  S.  107) 195 

i;.  West  Virginia  (11  Wallace,  39) 21 

Walker  y.  The  United  States  (4  Wallace,  163) 93 

W^ard  V.  Peck  (18  Ploward,  267) 294 

Warner  2;.  Fowler  (4  Blatchf.  311) 195 

Wear  v.  Mayer  (6  Fed.  Rep.  658)        248 

Webster  v.  Cooper  (14  Howard,  488)       231 

Werner  I'.  Charleston  (151  U.  S.  360) 93 

Weston  V.  Tlie  City  of  Charleston  (2  Peters,  464) 29 

Whelan  u.  The  United  States  (7  Cranch,  112) 301 

White  V.  Larkin  (144  U.  S.  628) 163 

Wickliffe  V.  Owings  (17  Howard,  47) 143 

Wilcox  &  Gibbs  Guano  Co.  v.  Phoenix  Insurance  Co.  (60  Fed. 

Rep.  929)       201 

Willard  c.  Dorr  (3  Mason,  161) 288 

Williams;,'.  Bank  (11  Wheaton,  414) 99 

?;.  Bruffy  (96U.  S.  176) 27 

V.  Star  Sand  Co.  (35  Fed.  Rep.  369) 277 

Wilson  ?;.  Daniel  (3  Dall.  401) 121 

Wilson  y.  Oswego  Township  (151  U.  S.  56) 192,194 

Wisconsin  v.  Pelicnn  Insurance  Co.  (127  U.  S.  265)       ....  207 

Wishart  v.  The  Joseph  Nixon  (43  Fed.  Rep.  926) 306 

Wiswalli^.  Campbell  (93  U.  S.  347) 102 

Witters  iJ.  Sowles  (28  Fed.  Rep.  218) 257 

Wood  V.  Two  Barges  (46  Fed.  Rep.  204)     . 306 

Ysleta  V.  Canda  (67  Fed.  Rep.  6) 199 

Yznaga  v.  Harrison  (93  U.  S.  233) 91 


JURISDICTION,  PRACTICE, 

AND 

PECULIAR    JURISPRUDE]S"CE 

OF   THE 

COURTS   OF   THE  UNITED   STATES. 


CHAPTER   I. 


THE   SUPREME   COURT. 


Gentlemen  of  the  Harvard  Law  School  :  — 

I  HAVE  been  requested  to  come  here  and  deliver 
some  lectures  upon  a  subject  of  which  you  have 
been,  undoubtedly,  already  informed,  —  the  juris- 
diction and  practice,  and  some  of  the  peculiar  juris- 
prudence, of  the  courts  of  the  United  States.  Before 
I  speak  directly  of  these  topics,  I  wish  to  say  a  few 
words  concerning  their  importance  to  you,  and  also 
concerning  the  method  I  shall  pursue  in  these 
lectures. 

When  I  came  to  the  bar,  forty  years  ago,  there 
were  comparatively  few  cases  tried  in  the  courts  of 
the  United  States.  They  were  generally  important 
cases,  but  they  were  few,  and  the  number  of  prac- 
titioners engaged  in  those  courts  was  small.  The 
practice  was  in  the  hands  of  a  few  leaders  of  the 
bar  in  the  great  cities  or  large  towns  where  the 
courts  were  held;  gentlemen  of  the  bar  residing 

1 


2         JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

elsewhere  did  not  trouble  themselves  to  acquire  any 
knowledge,  or  they  acquired  but  very  slight  knowl- 
edge, concerning  either  the  jurisdiction  or  practice  of 
those  courts.  In  truth,  they  had  nothing  to  do  with 
them,  except,  perhaps,  in  some  accidental  way. 

Owing  to  the  great  increase  in  the  wealth  and 
population  of  our  country,  in  its  interstate  as  well 
as  its  foreign  commerce,  in  the  means  of  locomo- 
tion, which  have  brought  the  different  parts  of  the 
country  so  much  nearer  together,  and  in  the  value 
of  patent  and  copy  rights  granted  by  the  United 
States,  as  well  as,  during  the  last  ten  years,  the 
extension  of  the  powers  of  Congress  over  many  sub- 
jects previously  left  to  the  exclusive  legislation  of 
the  States,  and  therefore  left  exclusively  to  the 
judicial  power  of  the  States,  —  owing  to  these  and 
other  causes,  all  co-operating,  the  business  of  the 
courts  of  the  United  States  has  greatly  increased; 
and  these  same  causes  are  likely  in  the  future  to 
operate  with  increased  efficiency.  You  will  readily 
understand,  therefore,  that  a  gentleman  about  to 
enter  the  profession,  who  neglects  to  inform  him- 
self concerning  the  subjects  of  these  lectures, 
neglects  to  obtain  important  means  of  usefulness 
and  success. 

A  few  words  concerning  the  method  I  propose  to 
pursue  in  what  I  have  to  say  to  you.  I  do  not  come 
here  prepared  with  elaborate  written  dissertations ; 
I  have  neither  time  nor  inclination  to  prepare  such; 
and  in  reference  to  these  particular  subjects,  I  can 
say  with  certainty  that  I  think  I  can  serve  you 
better  in  the  way  I  propose  to  treat  them  than  I 
could  by  elaborate  treatises;  because  my  desire  is, 


THE   SUPREME   COURT.  3 

not  SO  much  to  endeavor  to  teach  these  things  fully 
to  you,  as  to  induce  you  to  learn  them  for  your- 
selves, —  to  point  out  as  well  as  I  can  what  you  are 
to  look  for  and  how  you  are  to  find  it.  Of  course, 
it  must  depend  upon  yourselves  whether  you  will 
look  for  it,  whether  you  will  find  it,  and  what 
uses  you  will  make  of  the  information  which  I  give 
you.  But  having  confidence  in  your  individual 
desires  to  make  use  of  this  information,  I  will 
endeavor,  as  well  as  I  can,  to  show  you  how  you 
can  possess  yourselves  of  these  subjects  by  studying 
what  I  shall  indicate  to  you.  Nobody  can  teach 
them  to  you  without  your  own  study ;  you  cannot 
learn  them  in  any  other  way ;  and  I  do  not  enter- 
tain any  doubt  of  your  disposition  to  learn  them  in 
that  way.  Let  me  say,  however,  that,  in  order  to 
do  so,  it  will  be  necessary  to  take  careful  notes  of 
the  references  I  shall  make,  by  which  you  will 
ascertain  where  you  can  go  for  knowledge  of  the 
different  subjects  which  will  bo  indicated. 

In  pursuing  this  method,  of  course  it  will  be 
necessary  to  describe  more  or  less  fully  all  you  are 
to  look  for,  and  thus  to  give,  to  some  extent,  a 
logical  and  clear  account  of  the  different  topics,  as 
well  as  of  the  authorities  and  sources  from  which 
they  are  to  be  derived. 

I  have  had  some  doubt  how  to  begin,  —  and  to 
make  a  good  beginning  is  very  important,  — 
whether  to  begin  by  considering  first  the  District 
Courts,  which  are  the  lowest  courts  of  the  United 
States  in  the  several  States,  and  then  the  Circuit 
Courts,  which  rank  next  above  them,  and  then  the 
Supreme  Court,  or  to  follow  an  inverse  order.      It 


4         JURISDICTION,   PKACTICE,   AND   JUKISPRUDENCIi. 

lias  seemed  to  me  most  convenient,  and  that  the 
system  would  be  best  understood  by  the  student,  if 
1  begin  at  the  top,  and  not  at  the  bottom;  and 
therefore  I  shall  tirst  ask  your  attention,  in  this 
lecture,    to    the    Supreme    Court    of    the    United 

States. 

This  court,  which  may  truly  be  said  to  be  the 
greatest  court  in  the  civilized  world,i  considering 
its  duties  and  powers,  and  the  field  in  which  it 
exercises  them,  —this  court  was  established  by  the 
Constitution,  and  not  by  Congress ;  and  if  you  refer 
to  the  first  section  of  the  third  article  of  the  Con- 
stitution, you  will  find  the  provision  by  which  this 
court  was  established.     I  will  read  it  to  you :  — 

"The  judicial  power  of  the  United  States  shall 
be  vested  in  one  supreme  court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish." 

You  will  perceive  that  the  Constitution  estab- 
lishes "one  supreme  court,"  but  leaves  it  for  Con- 
gress to  ordain  and  establish,  from  time  to  time, 
such  inferior  courts  as  it  may  think  proper. 

In  this  connection,  before  I  come  to  the  article 
which  distributes  the  jurisdiction  among  the  courts, 
it  is  necessary  to  read  the  second  section  of  the 
third  article,  which  determines  to  what  subjects  the 
judicial  power  of  the  United  States  shall  extend ; 
because  you  should  bear  in  mind  that,  when  this 

1  ["The  Supreme  Court  of  the  United  States  is  not  onlv  a  most 
interesting,  but  a  virtually  unique  creation  of  the  founders  of  the  Con- 
stitution. The  success  of  this  experiment  has  blinded  men  to  its 
novelty.  There  is  no  exact  precedent  for  it  either  in  the  ancient  or 
in  the  modern  world."  —  Sir  Henry  Sumner  Maine.] 


THE   SUPREME   COURT.  5 

Constitution  was  formed,  it  assumed  that  all  judi- 
cial power,  as  well  as  all  legislative  and  executive 
power,  was  vested  in  the  several  States ;  and  this 
Constitution  is  a  grant  by  the  people  of  the  States 
of  certain  powers  to  the  national  government,  — - 
and,  among  other  powers,  a  grant  of  judicial 
power;  and  inasmuch  as  the  States  did  not  intend 
to  abdicate  their  judicial  power,  but  only  to  grant 
to  the  United  States  certain  enumerated  powers,  of 
a  judicial  character,  this  second  section  of  the  third 
article  declares  what  are  the  judicial  powers  granted 
by  the  Constitution.     I  will  now  read  it:  — 

"The  judicial  power  shall  extend  to  all  cases,  in 
law  and  equity,  arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or 
which  shall  be  made,  under  their  authority;  to  all 
cases  affecting  ambassadors,  other  public  ministers, 
and  consuls;  to  all  cases  of  admiralty  and  mari- 
time jurisdiction;  to  controversies  to  which  the 
United  States  shall  be  a  party;  to  controversies 
between  two  or  more  States,  between  a  State  and 
citizens  of  another  State,  between  citizens  of  dif- 
ferent States,  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States,  and 
between  a  State,  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects. "  ^ 

This  describes  and  enumerates  all  the  judicial 
powers  of  the  United  States.  Congress  cannot 
confer  any  more  than  these  upon  the  courts  of  the 
United  States. 

It  will  be  necessary  in  the  course  of  these  lectures 
to  look  with  considerable  minuteness  into  the  diffcr- 

1  Revised  Statutes,  §  G87. 


6  JURISDICTION,   PKACTICE,   a:ND   JUKISPKUDENCE. 

eiit  parts  of  this  section,  and  to  specify  the  subjects 
which  are  here  described,  and  distinguisli  between 
them.  1  only  read  it  now  that  you  may  understand 
the  next  paragraph,  which  distributes  this  judicial 
power  among  the  courts. 

"In  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  and  those  in  which  a  State 
shall  be  a  party, ^  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  the  other  cases  before 
mentioned,  the  Supreme  Court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such 
exceptions  and  under  such  regulations  as  the 
Congress  shall  make." 

Here  you  perceive  that  the  Constitution  has  made 
a  distinction  between  original  and  appellate  juris- 
diction of  the  Supreme  Court.  You  understand, 
doubtless,  that  "  original  jurisdiction  "  means,  that, 
in  the  court  which  possesses  it,  a  suit  may  be 
begun;  and  therefore,  in  these  cases  "affecting 
ambassadors,  other  public  ministers,  and  consuls, 
and  those  in  which  a  State  shall  Ije  a  party,"  the 
Supreme  Court  has  original  jurisdiction,  and  suits 
may  be  begun  there.  If,  for  instance,  two  States 
have  a  controversy  upon  the  subject  of  boundary,  or 
any  other  subject,  that  suit  may  be  begun  in  the 
Supreme  Court  of  the  United  States.  So  any  case 
which  arises  affecting  ambassadors,  or  other  public 
ministers  (I  shall  have  occasion  to  speak  to  you  as 

1  [Tliis  means,  of  course,  those  controversies  already  enumerated 
in  the  previous  section,  to  wliich  a  vState  may  be  a  party.  It  does  not 
give  the  Supreme  Court  jurisdiction  of  every  case  in  which  a  State 
is  a  party.  Hence  the  Supreme  Court  has  no  jurisdiction  of  a  suit 
between  a  State  and  citizens  of  the  same  State.  California  v.  Southern 
Pacific  Company,  Vol  U.  S.  229,  257.] 


THE    SUPREME    COUKT.  7 

to  what  is  meant  by  "  affecting "  them),  is  a  case 
for  the  original  jurisdiction  of  the  Supreme  Court 
of  the  United  States.  In  the  other  cases  to  which 
the  judicial  power  of  the  United  States  extends, 
the  jurisdiction  of  the  Supreme  Court  is  appellate 
only ;  the  suits  are  not  begun  there ;  they  are  begun 
in  some  other  courts ;  and  it  was  left  for  Congress 
to  determine  what  those  other  courts  should  be; 
and  it  did  determine  that  they  should  be  a  Circuit 
Court  and  a  District  Court.  Suits,  therefore,  in 
all  cases  except  those  which  affect  ambassadors, 
other  public  ministers,  or  consuls,  and  those  in 
which  a  State  is  a  party,  are  begun  in  one  or  the 
other  of  these  inferior  courts,  and  they  go  to  the 
Supreme  Court  ^  by  appeal  or  writ  of  error,  as  the 
nature  of  the  case  may  require.  I  shall  explain 
hereafter  how  that  is. 

Now,  the  question  arose  very  early  whether 
Congress  could  confer  upon  the  Supreme  Court  any 
original  jurisdiction  besides  that  which  is  here 
described;  that  is,  incases  affecting  ambassadors, 
etc.,  or  in  which  a  State  is  a  party.  Congress  had 
undertaken,  by  the  Judiciary  Act  of  September, 
1789,  to  confer  upon  the  Supreme  Court  of  the 
United  States  other  original  jurisdiction  ;  it  became 
necessary  for  the  court  to  decide  whether  that  was 
a  constitutional  law;  and  it  was  held  in  the  case 
of  Marhury  v.  3Iadison,  1  Cranch,  137,  that  Con- 
gress could  not  confer  on  the  Supreme  Court  any 
other  original  jurisdiction  than  that  which  was 
described  and  granted  by  the  Constitution.     You 

1  [The  appeal,  in  some  cases,  lies  now  to  the  new  court,  the  Circuit 
Court  of  Appeals.    See  post,  p.  74.] 


8         JUKISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

will  find,  on  reading  that  case,  — it  is  one  of  the 
great  judgments  of  Chief  Justice  Marshall,  not 
upon  this  point  only,  but  covering  a  variety  of  sub- 
jects,^—  you  will  find,  on  reading  that  case,  that 
the  court  came  to  the  conclusion  that  the  affirmative 
words,  that  the  Supreme  Court  shall  possess  this 
jurisdiction,  naturally  and  properly  included  a 
negative,  — that  they  should  not  possess  any  other; 
and  the  reasoning  by  which  that  conclusion  was 
arrived  at  is  perfectly  satisfactory.  So  that  you 
will  rest  in  this  conclusion,  that  the  Supreme 
Court  has  conferred  upon  it  the  original  jurisdic- 
tion described  by  the  Constitution,  and  no  other; 
and  that  Congress  cannot  confer  upon  it  any  other 
original  jurisdiction. ^ 

Then  another  question  early  arose,  and  it  is  a 
question  which  has  never  yet  been  finally  deter- 
mined ;  that  is,  whether  Congress  can  confer  upon 
either  of  the  inferior  courts,  the  Circuit  Court  or 
the  District  Court,  any  of  this  original  jurisdiction 
which  the  Constitution  says  is  to  be  conferred  upon 
the  Supreme  Court.  You  will  observe  that  the 
language  of  the  Constitution  contains  no  negative 
words ;  it  only  says  that  the  Supreme  Court  shall 

^  [In  this  case  it  was  held  for  the  first  time  that  an  Act  of  Congress 
which  conflicts  with  the  United  States  Constitution  is  void.] 

2  Strictly  speaking,  Congress  does  not  confer  any  original  juris- 
diction on  the  Supreme  Court.  All  that  it  possesses  was  granted  by 
the  terms  of  the  Constitution.  The  particular  original  jurisdiction 
■which  it  was  held  in  Marbury  \.  Madison  that  Congress  could  not 
confer  on  the  Supreme  Court  was  that  embraced  in  the  thirteenth 
section  of  the  Judiciary  Act  of  1789,  which  had  undertaken  to  em- 
power the  Supreme  Court  to  issue  writs  of  mandamus  in  cases  other 
than  those  cases  of  original  jurisdiction  conferred  on  that  court  by 
the  Constitution. 


THE   SUPREME    COURT.  \) 

have  this  original  jurisdiction,  and  that  in  other 
cases  the  Supreme  Court  shall  have  appellate  juris- 
diction from  such  courts  as  Congress  may  see  fit  to 
establish;  but  it  does  not  say  that  Congress  shall 
not  confer  the  original  jurisdiction  given  to  the 
Supreme  Court  on  other  courts,  and  this  is  a  ques- 
tion yet  undetermined.  If  you  refer  to  the  case  of 
the  United  States  v.  Ortega,  11  Wheaton,  467,  you 
will  find  the  question  was  raised  there  and  left 
undecided ;  and,  so  far  as  I  know,  it  is  undecided 
to  this  day.  The  reasons  which  induced  the 
Supreme  Court,  in  the  case  of  Marhury  v.  3Iadison, 
to  say  that  the  affirmative  words  carried  a  negative 
with  them  by  implication,  would  lead  me  to  think 
that  Congress  could  not  confer  any  of  the  original 
jurisdiction  which  is  given  to  the  Supreme  Court 
upon  the  Circuit  Court.  But  it  is  an  open  ques- 
tion ;  1  merely  indicate  it  in  passing,  in  order  that 
you  may  know  there  is  such  a  question.  ^ 

But  thouffh  the  Constitution  established  the 
Supreme  Court  of  the  United  States,  it  was  still 
necessary  that  Congress  should  act  to  organize  that 
court,  and  determine  what  should  be  its  terms  and 
its  methods  of  business,  its  number  of  judges,  their 
salaries,  etc.  ;  and  this  was  done  by  the  Act  of 
September   24,  1789,  which    is   found  in  the   first 

1  [This  question  has  since  been  decided  in  a  manner  contrary  to 
the  view  expressed  by  Judge  Curtis.  In  Bors  v.  Preston,  1 1 1  U.  S.  252, 
it  was  held  that  consuls  may  be  sued  in  the  Circuit  Court,  like  other 
aliens,  and  that  the  Act  of  Congress  giving  jurisdiction  of  suits  against 
consuls  and  vice-consuls  to  the  District  Courts  is  constitutional.  8ee 
Revised  Statutes,  §  563,  cl.  17,  and  §  687.  The  State  courts  also 
are  now  at  liberty  to  take  jurisdiction  of  sucli  suits.  See  Act  of 
February  18,  1875,  18  Stat.  318.] 


10       JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

volume  of  the  Statutes  at  Large,  pp.   73-93.     The 
first  section  of  this  act  reads  thus :  — 

"That  the  Supreme  Court  of  the  United  States 
shall  consist  of  a  Chief  Justice  and  five  Associate 
Justices,  any  four  of  whom  shall  be  a  quorum,  and 
shall  hold  annually,  at  the  seat  of  government,  two 
sessions,  the  one  commencing  the  first  Monday  of 
February,  and  the  other  the  first  Monday  of  August. 
That  the  Associate  Justices  shall  have  precedence 
according  to  the  date  of  their  commissions,  or, 
when  the  commissions  of  two  or  more  of  them  bear 
date  on  the  same  day,  according  to  their  respective 
ages. "  ^ 

At  the  present  time  there  are  nine  judges,  there 
is  one  term  instead  of  two,  and  that  term  begins  on 
the  second  Monday  of  October.  But  the  urgency 
of  the  business  of  the  court  is  such  that,  for  quite 
a  number  of  years  past,  they  have  held  an  adjourned 
session,  commencing  usually,  as  it  did  this  year, 
in  October,  —  the  second  week  in  October ;  so  that, 
practically,  the  court  is  in  session  about  six  months, 
or  six  months  and  a  half,  in  a  year.  They  adjourn 
commonly  early  in  the  month  of  April,  in  season 
for  the  judges  to  go  on  the  circuits;  during  the 
residue  of  the  year,  —  from  the  middle  of  October 
to  the  middle  of  April,  — they  are  in  session. ^ 

1  The  organization  of  the  Court  is  now  regulated  by  Chap.  IX., 
Title  XIII.,  of  the  Revised  Statutes.  There  are  a  Chief  Justice  and 
eight  Associate  Judges,  any  six  of  whom  constitute  a  quorum. 

2  Tlie  meaning  of  this  passage  is,  that  the  regular  term  of  the 
court  commences  in  the  second  week  of  October,  and  tlie  term  is 
ended  about  the  middle  of  April ;  but  that,  before  the  law  direct- 
ing this  earlier  commencement  of  the  regular  term,  there  had  some- 
times been  adjourned  terms,  commencing  in  October.  See  Ilevised 
Statutes,  §  684. 


THE   SUPREME   COURT.  11 

The  other  section  which  relates  to  the  establish- 
ment of  the  court  is  the  thirteenth,  and  that  is  the 
section  which,  under  the  Constitution,  confers  on 
the  court  its  jurisdiction,  both  original  and  appel- 
late ;  and  in  the  course  of  conferring  it,  Congress, 
as  I  have  said,  went  beyond  its  authority,  and  gave 
the  court  more  original  jurisdiction  than  Congress 
could  confer;  and,  in  the  case  of  Marhury  v. 
Madison,  to  which  I  have  referred,  the  court  decided 
that,  as  to  such  additional  original  jurisdiction,  it 
was  not  constitutional  law,  and  they  could  not 
exercise  that  additional  jurisdiction.  ^ 

Now,  turning  back  to  the  second  section  of  the 
third  article  of  the  Constitution,  allow  me  to  read: 
"The  judicial  power  shall  extend  to  all  cases,  in 
law  and  equity."  In  the  first  place.  What  is  meant 
by  "  cases  "  ?  That  you  will  find  was  discussed,  and 
there  is  an  opinion  of  Chief  Justice  Marshall 
thereon,  in  Oshorn  v.  The  Bank  of  the  United 
States,  9  Wheaton,  738.  The  conclusion  to  which 
the  court  came,  and  substantially  the  definition 
which  was  there  given,  is,  that  a  "case,"  within 
the  meaning  of  the  Constitution,  is  a  subject  on 
which  the  judicial  power  is  capable  of  acting,  and 
which  has  been  submitted  to  it  by  a  party  in  the 
forms  required  by  law.  That  is  what  is  meant  by 
the  Constitution  when  it  speaks  of  all  "cases."  It 
is  a  subject  on  which  the  judicial  power  is  capable 
of  acting,  and  which  has  been  submitted  to  it  by  a 
party  —  that  is,  one  who  is  interested  in  the  sub- 
ject—  in  the  forms  required  by  law. 

1  The  thirteenth  section  of  the  Jndiciary  Act  is  now  embodied  in 
Chap.  XI.,  Title  XIII.,  of  the  Revised  Statutes,  omitting  the  clause 
which  was  declared  to  be  unconstitutional. 


12       JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

Then  follows  "in   law  and  equity."     That   has 
been  decided  to  refer  to  the  known  division  exist- 
ing at  the  time  the  Constitution  was  formed,  under 
the  English  system  of  jurisprudence,  between  the 
common  law  and  the  equity  law;  and  this  distinc- 
tion is  preserved  throughout   in  the  practice  and 
proceedings  of  the  United  States  courts ;  and  it  is 
of  no  moment  whatever  in  those  courts  that  some  of 
the  States   have   abolished   this  distinction.     The 
States  can  pass  no   laws  which  affect  either   the 
jurisdiction  or  the  practice  of  the  courts  of   the 
United  States,  propria  vigore.'^     Those  laws  may  be 
adopted  by  Congress,  or,  in  the  absence  of  any  law 
of  Congress,  some  of  them  may  be  adopted  by  the 
courts  themselves,  by  rules ;  but,  propria  vigore,  by 
their  own  force.  State  laws  have  no  operation  what- 
ever on  the  courts  of  the  United  States.     The  aboli- 
tion of  the  distinction  between  law  and  equity,  for 
instance,  to  a  certain  extent,  in  the  State  of  New 
York   and  some  other  States,  has  no  operation  in 
the  courts  of  the  United   States.^     There,  as  you 
will  see  hereafter,  if  you  are  not  already  informed 
of  it,  the  practice  at  law  and  in  equity  is  perfectly 
distinct,  just  as  much  as  it  was  in  England  at  the 
time  when  the  Constitution  was  formed;  and  the 
equity  practice  of  the  courts  of  the  United  States  is 
the  same  everywhere  in  the  United  States,  and  they 
administer   the    same  system  of  equity   rules  and 
equity    jurisprudence    through   the   whole    of    the 
United  States,  without  regard  to  State  laws.     The 
State   laws  are  operative,  as  rules  of  decision,  in 

1  [Sheffield  Furnace  Co.  v.  Wifherow,  149  U.  S  574,  579  ] 

2  [Potts  V.  Accident  Insurance  Co.,  35  Fed.  Rep.  566.] 


THE   SUPREME   COURT.  13 

trials  at  law,  because  Congress  has  so  enacted  in 
the  thirty-fourth  section  of  the  Judiciary  Act,  but 
not  in  trials  on  the  equity  side  of  the  court.  ^ 

Then  comes,  after  the  words  1  have  read,  "all 
cases  in  law  and  equity,  arising  under  this  Consti- 
tution, the  laws  of  the  United  States,  and  treaties 
made,  or  which  shall  be  made,  under  their  author- 
ity." That  is,  the  judicial  power  of  the  United 
States  may  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution.  Any  case  which 
depends,  in  part  or  in  whole,  upon  this  Constitu- 
tion, any  case  which  depends,  in  part  or  in  whole, 
upon  the  laws  of  the  United  States,  or  any  treaty 
made  by  the  United  States,  comes  under  the  judi- 
cial power,  and  under  the  jurisdiction  which  has 
been,  or  may  be,  conferred  upon  the  courts  by 
Congress. 

Then  comes  the  language,  "to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls;" 
and  a  question  arose,  many  years  ago,  concerning 
the  meaning  of  that  word  "affecting."  What  is  a 
case  that  "affects"  an  ambassador?  The  case  is 
United  States  v.  Ortega,  already  referred  to  (11 
Wheaton,  467),  in  which  the  court  held  that  an 
indictment  for  an  assault  upon  a  public  minister 
was  not  a  case  "affecting"  that  minister,  within 
the  meaning  of  the  Constitution.  And  there  is  a 
more  recent  case,  in  the  13th  of  Wallace,  581, 
where  the  same  word  occurs  in  a  recent  Act  of 
Congress,  and  the  court  has  reaffirmed  the  opinion 

1  See  Revised  Statutes,  §  721 ;  and  note  the  language  and  the 
limitations  of  this  rule.  See  also  Memoir,  &c.  of  Judge  Curtis, 
Vol.  I.  pp.  203,  204,  209,  210. 


14       JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

ill  the  11th  of  Wheaton.  In  that  case  the  question 
was,  whether  the  right  of  a  negro  to  be  a  witness 
in  the  State  of  Kentucky,  Avliere  he  had  been  pre- 
viously disqualified,  was  a  case  "affecting"  that 
witness,  and  the  court  held  that  it  was  not.  The 
witness  was  not  aiiected  by  the  case,  whether  he 
was  admitted  to  testify  or  excluded  from  testifying; 
that  was  no  affair  of  his.^ 

The  next  phrase  here  which  requires  examination 
is,  — "to  controversies  to  which  the  United  States 
shall  be  a  party;  to  controversies  between  two  or 
more  States,"  etc.  Under  these  words,  it  has  been 
held  that  it  is  not  sufficient  that  a  State  is  interested 
in  the  suit ;  a  State  may  be  even  exclusively  inter- 
ested in  a  suit,  and  yet  it  would  not  be  a  suit  in 
which  the  State  is  "a  party,"  within  the  meaning 
of  the  Constitution.  Quite  a  number  of  decisions 
have  been  made  on  this  point.  I  will  refer  you  to 
two  leading  cases.  The  first  is  The  Banlc  of  the 
United  States  v.  The  Planters'  Bank,  9  Wheaton, 
904,  and  the  second  is  Oshorn  v.  The  Bayik  of  the 
United  States,  in  the  same  book,  page  738.  In  the 
first  of  these  cases,  the  State  owned  all  the  stock  in 
a  bank  which  it  had  established,  and  the  question 
was  whether,  where  a  suit  was  brought  either  for 
or  against  such  a  bank  the  State  was  "a  party," 
within  the  meaning  of  these  words  of  the  Constitu- 
tion; and  it  was  held  that  the  State  was  not  a 
party,  that  it  must  be  a  party  on  the  record,  and 
that  it  was  not  sufficient  that  the  State  was  even 
exclusively  interested  in  the  subject-matter  of  the 
suit.     In  the  case  of    Oshorn  v.   The  Bank  of  the 

1  Blyew  T.  The  United  States,  13  Wallace,  581. 


THE   SUPREME   COUKT.  15 

United  States^  a  tax-collector  in  Ohio,  being  of 
course  a  State  officer,  had  undertaken  to  collect  a 
tax  from  the  Bank  of  the  United  States,  which  was 
provided  for  and  levied  upon  that  bank  for  the 
avowed  purpose  of  driving  that  branch  of  the  bank 
out  of  the  State.  The  court  held  that  the  act  was 
unconstitutional,  and  that  the  State  was  not  a 
party ;  for  although  its  officer,  Mr.  Osborn,  was  to 
collect  this  money  for  the  benefit  of  the  State,  and 
although  the  injunction  against  him  which  stopped 
its  collection  must  prevent  the  money  from  going 
into  the  treasury  of  the  State,  and  the  State  was 
thus  exclusively  interested,  nevertheless  the  State 
was  not  a  party  upon  the  record,  and  therefore  was 
not  within  the  meaning  of  the  language  of  the 
Constitution.^ 

This  lansruage  —  "to  controversies  between  two 
or  more  States"  —  requires  no  particular  comment. 
One  State  may  sue  another  State  in  the  Supreme 
Court,  under  its  original  jurisdiction,  either  on  a 
question  of  boundary  ^  or  any  other  question. 
Questions  of  boundary  have  been  of  more  frequent 
occurrence;  but  there  have  been  suits  brought  by 


1  [The  ground  of  this  decision,  as  here  stated  by  Judge  Curtis,  has 
since  been  disclaimed  by  the  Supreme  Court.  It  is  now  held  that  a 
State  may  be  a  party  to  a  suit,  although  not  a  party  upon  the  record  ; 
and  the  decision  in  Oxhnrn  v.  The  Bank  of  the  United  States  is  defended 
solely  upon  the  ground  that  the  defendant  was  a  wrong-doer,  a  tres- 
passer, who  had  taken  money  from  the  bank  unlawfully ;  and  this 
specific  money  was  recovered  from  him.  If  the  money  had  been  paid 
into  the  treasury  and  mixed  with  other  money  of  the  State,  it  could 
not  have  been  recovered  in  any  form  of  action.  See  hi  re  Ayers, 
123  U.  S.  443,  487.] 

2  [Such  a  case  is  Towa  v.  Illinois,  151  U.  S.  238.] 


16       JURISDICTION,   PKACTICE,   AND   JURISPRUDENCE. 

one  State  against  another  of  a  different  character. 
It  matters  not  what  the  character  of  the  suit  is ;  if 
it  is  brought  by  one  State  against  another,  the 
Supreme  Court  of  the  United  States  has  original 
jurisdiction. 

"Between  a  State  and  citizens  of  another  State." 
Well,  under  that  language,  it  was  held  by  the 
Supreme  Court,  immediately  after  the  Constitution 
was  formed,  that  a  citizen  of  Massachusetts,  for 
instance,  could  sue  the  State  of  Rhode  Island,  or 
any  other  State.  That  caused  great  dissatisfac- 
tion, i  State  sovereignty  in  those  days  was  looked 
upon  as  more  sacred,  perhaps,  than  it  is  now.  At 
all  events,  that  interpretation  which  was  placed 
upon  the  Constitution  by  the  Supreme  Court  was  a 
subject  of  great  complaint ;  and  the  result  was  the 
eleventh  amendment  to  the  Constitution,  which  is 
as  follows :  — 

"The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit,  in  law  or 
equity,  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  State,  or  by 
citizens  or  subjects  of  any  foreign  state." 

Therefore,  this  eleventh  amendment  withdraws 
the  States  from  any  liability  to  a  suit  by  an  indi- 
vidual, whether  a  citizen  of  another  State  or  a 
citizen  of  a  foreign  state,  but  it  leaves  the  State  to 
be  sued  by  another  State,^  and  it  leaves  the  State 


1  The  reference  here  is  to  the  case  of  Chisholm  v.  The  State  of 
Geor(]ia,  2  Dallas,  419. 

2  [A  State  may  also  he  snod  by  the  United  States,  and  the  Supreme 
Conrt  has  exclusive  jurisdiction  of  such  a  suit.  United  States  v. 
Texas,  143  U.  S.  621.] 


THE   SUPREME   COURT.  17 

also  to  be  sued  by  a  foreign  sovereign.  ^  A  foreign 
citizen  or  subject  cannot  sue  a  State ;  but  a  foreign 
sovereign,  as,  for  instance,  the  Queen  of  England, 
may  bring  a  suit  against  the  State  of  Massachusetts, 
or  any  other  State  in  the  Union,  in  the  Supreme 
Court  of  the  United  States.^  A  State,  however,  is 
capable  of  suing  citizens  of  other  States,  although 
not  suable  by  them,  and  such  suits  have  not  been 
unknown.  You  will  find  one,  and  it  is  a  leading 
case,  in  the  7th  of  Wallace,  700,  —  The  State  of 
Texas  v.  White,  —  where  the  State  of  Texas  brought 
suit  against  certain  parties  in  the  Supreme  Court 
for  the  purpose  of  enjoining  the  negotiation  of 
State  bonds,  a  large  amount  of  which  had  passed 
out  of  the  control  of  the  State  officers  during  the 
confusion  and  trouble  in  that  State ;  and  the  State 
obtained  an  injunction,  and  finally,  under  a  decree 
of  the  Supreme  Court,  obtained  the  bonds  them- 
selves, to  a  large  amount.  I  refer  to  it  as  an 
instance  in  which  a  State,  under  the  Constitution, 
exerted  its  authority  to  bring  a  suit  in  that  court 
against  individuals. 

1  Tlie  term  "  foreign  state,"  in  this  part  of  the  Constitutiou,  does 
not  comprehend  any  Indian  nation  withiu  the  territorial  limits  of  the 
United  States.  The.  Cherokee  Nation  v.  The  State  of  Georgia,  5 
Peters,  1.  Nor  does  it  comprehend  any  Indian  tribe  or  nation  resi- 
dent in  the  British  dominions  and  under  the  pupilage  of  the  Crown. 
See  Memoir,  &c.  of  Judge  Curtis,  Vol.  I.  p.  282. 

2  I  once  advised  a  representative  of  the  Queen  (The  Governor- 
General  of  Canada)  that  such  a  suit  might  be  brought  to  ascertain 
the  liability  of  the  State  of  New  York  to  certain  tribes  of  Indians 
settled  in  Canada.  There  were  obvious  reasons  why  the  Queen,  at 
that  time,  should  not  become  a  suitor  in  our  Supreme  Court.  But 
the  time  may  come  when  such  a  suit  may  be  brought.  —  B.  R.  C.  See 
the  opinion  given  by  Judge  Curtis  in  his  Memoir,  &c.,  Vol.  I.,  and 
his  article  on  the  State  Debts,  in  Vol.  II.  of  the  same  work. 

2 


18       JUKISDICTIOX,   PKACTICE,   AND   JURISPRUDENCE. 

I  have  gone  through  all  I  desire  to  say  upon  the 
subject  of  the  jurisdiction  of  the  Supreme  Court, 
and  1  will  now  ask  your  attention  for  a  few  moments 
to  the  practice  of  that  court  in  the  exercise  of  its 
original  jurisdiction,  because  you  will  find  that  the 
practice  of  the  Supreme  Court  under  its  appellate 
jurisdiction  is  something  entirely  different  from  its 
practice  under  its  original  jurisdiction.  There  is 
no  Act  of  Congress  regulating  the  practice  of  the 
Supreme  Court  under  its  original  jurisdiction ;  but 
the  third  rule  of  the  Supreme  Court  respecting  its 
own  practice  is  in  these  words :  — 

"  This  court  considers  the  former  practice  of  the 
Courts  of  King's  Bench  and  Chancery  in  England 
as  affording  outlines  for  the  practice  of  this 
court;  and  will  from  time  to  time  make  such 
alterations  therein  as  circumstances  may  render 
necessary. " 

That  is  a  very  old  rule,  made  by  the  court  imme- 
diately after  its  organization,  and  rules  have  been 
from  time  to  time  made  by  the  court,  under  what 
it  considers  to  be  its  power  in  the  absence  of  an 
Act  of  Congress,  in  regard  to  a  variety  of  subjects 
occurring  in  the  course  of  its  original  jurisdiction. 
I  shall  have  occasion  to  refer  to  some  of  them. 

The  most  important  class  of  cases  under  this 
original  jurisdiction  —  indeed,  the  only  class  which 
has  been  of  any  practical  importance  thus  far  in  the 
history  of  the  court  —  has  been  suits  between  States, 
or  between  a  State  and  citizens  of  another  State.  I 
do  not  know  that  I  can  refer  to  any  rule  of  the 
court,  or  to  any  decision  which  has  fixed  any  rule 
by  which  the  proceedings  in  such  cases  are  abso- 


THE   SUPKEME   COURT.  19 

lutely  regulated,  but  the  general  understanding  is, 
and  the  general  practice  —  so  far  as  I  know,  the 
universal  practice,  except  in  one  or  two  very  early 
cases  —  has  been  to  resort  to  a  bill  in  equity,  and 
it  is  under  the  forms  of  proceeding  in  equity  that 
this  original  jurisdiction  for  a  great  many  years 
has  been  exercised.  So  that,  when  a  State  has  had 
occasion  to  bring  a  suit,  it  has  filed  a  bill  in  which 
it  states  its  case  in  the  same  form,  and  under  the 
same  rules  of  pleading,  as  if  it  were  suing  in  a 
court  of  equity,  and  there  is  a  demurrer,  or  a  plea, 
or  an  answer,  or  whatever  is  deemed  to  be  a  proper 
defence,  regulated  by  rules  of  practice  similar  to 
those  which  would  regulate  the  same  suit  if  it  were 
in  the  Circuit  Court  or  a  State  court  in  equity, 
where  equity  practice  was  known.  You  may  there- 
fore safely  take  it  that  in  all  cases  between  States, 
or  between  a  State  and  an  individual,  where  this 
original  jurisdiction  is  to  be  exercised,  unless  it 
is  a  case  in  which  the  common  law  would  afford  a 
plain,  adequate,  and  complete  remedy,  you  are  to 
file  a  bill  in  equity,  as  if  you  were  prosecuting  a 
claim  in  an  equity  court.  ^ 

It  is  not  to  be  forgotten  that  the  original  jurisdic- 
tion of  the  Supreme  Court  extends  to  cases  both  in 
law  and  equity;  and  that  the  division  between  the 
two  systems  is  just  as  sharp  and  clear  when  this 
original  jurisdiction  is  appealed  to  as  when  appli- 
cation is  made  to  an  inferior  court,  and  that  in 
cases  remediable-  by  the  common  law,  plainly  and 
adequately,  the  remedy  sought  must  be  by  the  forms 

1  [The  procedure  in  cases  of  original  jurisdiction  is  touched  upon 
in  California  v.  Southern  Facijic  Company,  157  U.  S.  229  ] 


20       JUniSDICTION,    PRACTICE,    AND   JUEISPRUDENCE. 

of  the  common  law  in  the  Supreme  Court  as  well 
as  in  the  inferior  courts. 

]  perhaps  might  mention  here,  in  passing,  though 
it  is  not  a  point  of  very  much  importance,  that  a 
suit  against  the  Governor  of  a  State,  in  his  official 
capacity,  is  deemed  by  the  court  to  be  a  suit  against 
the  State.  1  I  should  also  mention,  as  a  point  of 
more  importance,  that  the  practice  of  the  court 
requires  that  leave  should  be  obtained  before  a  bill 
is  liled.  Ordinarily,  in  a  court  of  equity,  you  file 
your  bill  as  a  matter  of  right ;  but  the  practice  in 
the  Supreme  Court  of  the  United  States  has  always 
been  to  apply  to  the  court  on  motion  to  obtain  leave 
to  file  the  bill.  Whether  that  is  by  reason  of  the 
dignity  of  the  parties,  the  importance  of  the  subject- 
matter,  or  what  not,  I  do  not  know,  but  the  practice 
early  obtained,  and  has  always  been  adhered  to. 
You  will  find  it  stated  in  the  case  of  The  State  of 
G-eorgia  v.  Grrant,  6  Wallace,  241,  where  the  Chief 
Justice  says  that  it  is  necessary  to  obtain  that 
leave. 

The  question  early  arose  how  notice  was  to  be 
given  of  a  suit  against  a  State,  and  on  whom  process 
was  to  be  served.  That  was  disposed  of  by  a  rule 
which  the  court  adopted,  and  which  is  Rule  5. 
"  All  process  of  this  court  shall  be  in  the  name 
of  the  President  of  the  United  States.  When  pro- 
cess at  common  law  or  in  equity  shall  issue 
against  a  State,  the  same  shall  be  served  on  the  Gov- 
ernor or  chief  executive  magistrate,  and  Attorney- 
General  of  such  State." 

1  Commonwealth  of  Kentucky  v.  Dennison,  24  Howard,  66 ;  Cover- 
nor  of  Georgia  v.  Madrazo,  1  Petera,  110. 


THE   SUPREME   COURT.  21 

That  is  the  mode  in  which  service  of  the  process 
must  be  made.^ 

Now,  as  a  practical  matter,  I  state  to  you,  that 
all  suits  under  the  original  jurisdiction  of  the 
Supreme  Court  are  entered  by  the  clerk  on  a  sepa- 
rate docket,  which  is  called  "the  original  docket," 
and  these  cases  are  kept  distinct  from  the  cases 
which  come  there  by  appeal  or  writ  of  error.  This 
original  docket  is  a  thing  by  itself,  and  all  pro- 
ceedings in  these  cases  on  the  original  docket  are 
on  motion.  No  case  is  heard,  unless  the  court 
makes  a  special  order  to  have  it  heard.  No  pro- 
ceeding takes  place  in  any  of  these  original  cases 
without  a  special  order.  If,  for  instance,  a  suit  is 
brought  by  Virginia  against  West  Virginia,  as 
there  was  such  a  controversy  not  long  since,  the 
State  of  Virginia  has  to  obtain  leave  to  file  a  bill, 
to  obtain  process  and  have  it  served,  and  so  get  the 
State  of  West  Virginia  before  the  court.  ^  The 
next  thing  is,  to  obtain  from  the  court  an  order 
that  West  Virginia  answer.  That  is  done  on 
motion,  by  a  special  order,  and  the  time  is  fixed. 
Every  step  that  is  taken  in  the  case  is  on  some 
special  motion.     That,  1  suppose,  is  on  account  of 

1  New  Jersey  v.  New  York,  5  Peters,  283.  If  a  State  fails  to 
appear  in  obedience  to  the  summons  of  the  court,  no  compulsory- 
process  will  be  resorted  to,  but  the  suit  will  proceed  ex  parte.  Rhode 
Island  V.  Massachusettft,  12  Peters,  657. 

2  The  case  of  Virginia  v.  West  Virginia,  reported  in  11  Wallace, 
39,  was  a  case  of  boundary.  It  was  held  that  the  original  jurisdiction 
of  the  Supreme  Court  was  not  defeated  because,  in  deciding  the 
question  of  boundary,  it  was  necessary  to  consider  and  construe  con- 
tracts and  agreements  between  the  two  States,  nor  because  the  judg- 
ment or  decree  of  the  court  might  affect  the  territorial  limits  of  the 
juris  liction  of  the  States. 


22        JURISDICTION,    PllACTICE,    AND   JUKISPKUDENCE. 

the  dignity  of  the  parties,  the  nature  of  the  agencies 
they  must  employ,  and  the  importance  of  the 
subject-matter  involved. 

I  think  I  have  now  gone  through  with  all  that  is 
needful  for  me  to  say  to  you  at  this  time  in  regard 
to  the  original  jurisdiction  of  the  Supreme  Court, 
its  extent,  and  the  manner  in  which  it  is  exercised. 
In  the  next  lecture,  I  shall  speak  to  you  concerning 
the  appellate  jurisdiction,  as  regulated  by  Con- 
gress, on  writs  of  error  and  appeals,  and  other 
special  modes  of  procedure. 


THE   SUPREME   COUIIT.  23 


CHAPTER  II. 

THE  SUPREME  COURT  {continued). 

You  will  remember,  gentlemen,  that  in  the  last 
lecture  I  endeavored  to  show  that  the  Supreme 
Court  of  the  United  States  was  constituted  by  a 
provision  in  the  Constitution  of  the  United  States, 
not  by  Congress;  that  its  jurisdiction  was  divided 
into  two  distinct  parts,  its  original  and  its  appel- 
late jurisdiction ;  and  I  further  explained,  or 
endeavored  to  explain,  how  this  original  jurisdic- 
tion is  exercised,  as  well  as  what  is  its  extent.  In 
this  lecture  I  desire  to  speak  of  the  other  branch  of 
the  jurisdiction  of  the  Supreme  Court,  —  its  appel- 
late jurisdiction.  You  will  remember,  I  explained 
the  distinction  between  these  two  classes  of  cases,  — 
the  one  depending  upon  the  original,  and  the  other 
upon  the  appellate  jurisdiction.  The  Supreme 
Court's  original  jurisdiction  allows  you  to  begin  a 
suit  there;  it  has  appellate  jurisdiction,  when  you 
must  institute  a  suit  in  some  other  court,  and  carry 
it  to  the  Supreme  Court  by  some  process  provided 
by  law. 

The  subject  of  this  lecture  is  the  appellate  juris- 
diction of  the  Supreme  Court;  and  this  is  divisible 
into  two  parts,   distinct  the  one  from  the  other, 


24       JUKISDICTION,   PKACTICE,   AND   JURISPRUDENCE. 

because  the  jurisdiction  in  one  class  of  cases  is 
exercised  over  courts  of  the  several  States ;  in  the 
other  class  of  cases  it  is  exercised  over  courts  of 
the  United  States. 

It  may  seem  somewhat  surprising  that,  although 
the  Constitution  of  the  United  States  has  not  in 
terms  gi-anted  to  the  Supreme  Court  appellate 
power,  in  reference  to  courts  of  the  several  States, 
nevertheless  such  a  power  exists ;  and  I  may  men- 
tion to  you,  in  passing,  —  although  this  is  not  a 
lecture  upon  the  Constitution  of  the  United  States, 
nevertheless  the  matter  is  incidentally  connected 
with  the  subject  upon  which  I  am  speaking,  —  I 
may  mention,  I  say,  in  passing,  that  at  an  early- 
day,  and  especially  in  the  State  of  Virginia,  all 
appellate  power  of  the  Supreme  Court  of  the  United 
States  over  courts  of  the  several  States  was  not 
only  seriously  questioned,  but  absolutely  denied; 
and  it  required  a  repetition  of  instances,  in  which 
the  Supreme  Court  of  the  United  States  vindicated 
its  authoritv  over  courts  of  the  several  States, 
within  certain  well-defined  limits,  to  convince  the 
country  that  this  power  existed.  It  may  not  be 
inappropriate  for  me,  in  a  few  words,  to  call  your 
attention  to  the  source  of  this  power.  It  is  only 
an  implied  power,  but  its  implication  is  necessary, 
and  the  reasons  for  it  are  satisfa.ctory.  Its  source 
will  be  found  in  the  second  clause  of  the  sixth 
Article  of  the  Constitution:  "This  Constitution, 
and  the  laws  of  the  United  States  which  shall  be 
made  in  pursuance  thereof,  and  all  treaties  made, 
or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the 
land." 


THE   SUPREME   COUKT.  25 

The  question  at  once  arose,  how  this  Constitu- 
tion, these  treaties,  and  these  laws  could  be  the 
supreme  law  throughout  the  United  States,  unless 
the  judicial  power  of  the  United  States  could  take 
cognizance  of  all  questions  arising  under  them,  and 
give  final  effect  to  them.  This  entire  subject  in 
all  its  bearings  you  will  find  discussed,  with  great 
ability,  in  the  cases  of  Martin  v.  Hunter^  1  Wheaton, 
304,  and  Cohens  v.  The  State  of  Virginia,  6 
Wheaton,  264,  in  which  the  Supreme  Court,  with 
decisive  effect,  —  I  say  decisive  effect,  because  the 
country  has  always  since  that  time  acquiesced,  — 
vindicated  its  jurisdiction  over  the  courts  of  the 
several  States  in  a  limited  class  of  cases. 

That  jurisdiction  was  derived  from  an  act  of 
Congress,  —  as  indeed  all  appellate  jurisdiction 
must  be  under  the  Constitution,  because  it  is  pro- 
vided in  the  Constitution  that  the  Supreme  Court 
shall  have  certain  original  jurisdiction  (as  I 
explained  in  the  last  lecture), — and  "in  all  the 
other  cases  before  mentioned,  the  Supreme  Court 
shall  have  appellate  jurisdiction,  both  as  to  law 
and  fact,  with  such  exceptions  and  under  such 
regulations  as  the  Congress  may  make."  "In  all 
the  other  cases,"  —  that  is,  in  all  other  cases  that 
have  been  previously  described,  —  not  in  all  cases, 
but  in  all  other  cases  previously  described,  —  they 
shall  have  appellate  jurisdiction,  "with  such  excep- 
tions, and  under  such  regulations,  as  the  Congress 
may  make." 

Now,  immediately  after  the  organization  of  the 
government,  there  was  passed,  on  the  24th  day  of 
September,     1789,     what   has   been    always    since 


26       JUKISDICTION,    PEACTICE,    AND    JURISPRUDENCE. 

known  as  the  "Judiciary  Act,"  and  perhaps  the 
most  important  section  of  that  act,  certainly  one  that 
has  had  very  great  influence  on  the  country  through 
the  judiciary,  and  which  was  absolutely  essential  to 
carry  on  the  government  of  the  United  States  as  it 
was  established  by  the  Constitution,  was  the  twenty- 
fifth  section.  I  will  read  that  section,  because 
every  part  of  it  requires  consideration :  — 

"  That  a  final  judgment  or  decree  in  any  suit,  in 
the  highest  court  of  law  or  equity  .of  a  State  in 
which  a  decision  in  the  suit  could  be  had,  where  is 
drawn  in  question  the  validity  of  a  treaty  or  statute 
of,  or  an  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  their  validity; 
or  where  is  drawn  in  question  the  validity  of  a 
statute  of,  or  an  authority  exercised  under,  any 
State,  on  the  ground  of  their  being  repugnant  to 
the  Constitution,  treaties,  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  their  validity ; 
or  where  is  drawn  in  question  the  construction  of 
any  clause  of  the  Constitution,  or  of  a  treaty  or 
statute  of,  or  commission  held  under,  the  United 
States,  and  the  decision  is  against  the  title,  right, 
privilege,  or  exemption  specially  set  up  or  claimed 
by  either  party,  under  such  clause  of  the  said  Con- 
stitution, treaty,  statute,  or  commission,  —  may  be 
re-examined,  and  reversed  or  affirmed,  in  the  Su- 
preme Court  of  the  United  States  upon  a  writ  of 
error."  ^ 

1  The  twenty-fifth  section  of  the  Judiciary  Act  of  1789  is  now 
embotliod  in  §  709  of  the  Kevisod  Statutes,  with  some  slight  changes 
of  phraseology,  and  some  additional  clauses.  The  substance,  how- 
ever, of  this  organic  law   remains   the  same.      The   modifications 


THE   SUPREME   COURT.  27 

There  you  will  perceive  that,  under  the  provision 
of  the  Constitution  that  Congress  may  regulate  the 
appellate  power  of  the  Supreme  Court,  authority  is 
given  to  the  Supreme  Court  to  send  a  writ  of  error 
to  the  highest  court  of  the  State  to  which  one  of 
the  questions  here  described  could  be  carried  by  a 
writ  of  error,  and  such  question  is  to  be  brought  up 
to  the  Supreme  Court  of  the  United  States,  to  be 
there  examined,   and  reversed  or  affirmed. 

It  will  be  necessary,  in  the  progress  of  our  exami- 
nation of  this  important  section,  to  notice  the  class 
of  questions  which  may  be  thus  transferred  to  the 
Supreme  Court  of  the  United  States. 


were  first  introduced  by  an  act  passed  February  5,  1867.  As  the 
law  now  stands,  under  the  provisions  of  the  last-named  act,  incor- 
porated into  the  Revised  Statutes,  the  Supreme  Court  of  the  United 
States  may  review  the  final  judgment  or  decree  of  the  highest  court 
of  a  State  in  which  a  decision  could  be  had,  in  three  classes  pf 
cases : — 

1st.  Where  is  drawn  in  question  the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised  under,  the  United  States,  and 
the  decision  is  against  their  validity. 

2d.  Wliere  is  drawn  in  question  the  validity  of  a  statute  of,  or 
an  authority  exercised  under,  any  State,  on  tlie  ground  of  their  being 
repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United  States, 
and  the  decision  is  in  favor  of  their  validity. 

3d.  "Where  any  title,  right,  privilege,  or  immunity  is  claimed 
under  the  Constitution,  or  any  treaty  or  statute  of,  or  commission 
held  or  authority  exercised  under,  the  United  States,  and  the  decision 
is  against  the  title,  right,  privilege,  or  immunity  specially  set  up  or 
claimed  by  either  party  under  such  Constitution,  treaty,  statute,  com- 
mission, or  authority. 

Any  enactment,  from  whatever  source  originating,  to  which  a 
State  gives  the  force  of  law,  is  a  "  statute"  of  the  State,  within  the 
meaning  of  the  law  which  regulates  the  appellate  jurisdiction  of  the 
Supreme  Court  over  the  judgments  and  decrees  of  the  State  courts. 
Williams  v.  Brufy,  96  U.  S.  176 ;  Ford  v.  Surget,  97  U.  S.  594. 


28        JURISDICTION,    PEACTICE,   AND    JUEISPRUDENCE. 

Now,  there  are  certain  requirements  here,   each 
of   which    demands    attentive    consideration.     The 
act  says,   "a  final  judgment."     Only  a  final  judg- 
ment can  thus  be  examined,  and  the  reason  for  this 
is  apparent.      Suppose,  for  instance,  that,  in  a  suit 
in  a  State  court,  a  defendant  sets  up  a  provision  in 
the  Constitution  of  the  United  States,  —  such,  for 
instance,  as  that  provision  which  has  so  often  been 
relied  upon,    that  the   State  law  under  which  the 
suit  is  brought,  or  upon  which  it  depends,  violates 
the  obligations  of  a  contract,  and  therefore  it  was 
not  within  the  power  of  the   State  to  pass  such  a 
law ;  or  suppose  the  defendant  says  it  is  an  ex  post 
facto  law,  or  relies  upon  any  other  limitation  on 
the  power  of  a  State  made  by  the  Constitution.     He 
sets   that  up  in  his  defence,  and  the   lower  court 
decides    against   him ;    he   must    not    stop    there, 
because,  if  he  carries  the  case  to  a  higher  court, 
they  may  decide  in  his  favor,  and  it  may  be  wholly 
unnecessary  to  go  beyond  the  judicial  power  of  the 
State  to  have  the  question  properly  decided.     It  is 
therefore   only  "a  final  judgment"  of  the  highest 
court  of  the  State  to  which  the  party  has  the  power 
to   carry  the  question.     There  have  been  a  great 
many  decisions   made  upon  the  question  of  what 
judgment  is  "final,"  and  what  is  not.     They  have 
more  often  been  made  under  those  provisions  of  the 
Judiciary  Act  which  relate  to  the  Circuit  Courts  of 
the  United  States,  where  the  same  requirement  is 
found.     Judgments  of  the   Circuit  Courts  can  be 
carried  to  the  Supreme  Court  only  when  they  are 
final,  and  under  that  clause  of  the  statute  a  great 
many  decisions  have  been  made ;  not  so  many  under 


THE    SUniEME   COURT.  29 

the  twenty-fifth  section,  which  contains  the  same 
requirement;  but  if  you  will  look  at  the  case  of 
Houston  V.  Moore,  3  Wheat.  433,  you  will  find  a 
decision  upon  these  words  of  the  statute  requiring 
the  judgment  to  be  final.  ^ 

The  next  words  are,  "final  judgment  or  decree 
in  any  s?«Y. "  Well,  it  has  been  a  subject  of  dis- 
cussion, What  is  a  "suit,"  within  the  meaning  of 
this  law  ?  and  that  was  settled  in  the  case  of  Weston 
V.  The  City  of  Charleston,  2  Peters,  464.  The  con- 
clusion reached  was,  that  it  is  any  proceeding  in  a 
court  of  justice  by  which  a  remedy  is  sought  for  a 
right.  It  is  not  necessarily  a  proceeding  according 
to  the  course  of  the  common  law  or  equity  law;  it 
may  be  a  proceeding  under  a  State  statute.  Under 
a  State  statute,  for  instance,  there  may  be  a  par- 
ticular mode  of  proceeding  in  order  to  try  a  right; 
and  a  proceeding  under  such  a  statute,  however  it 
may  differ  from  the  usual  modes  of  proceeding,  is 
a  "suit,"  within  the  meaning  of  this  section.^ 

The  next  requirement  is,  that  it  must  be  a  final 
judgment  of  the  highest  court  of  law  or  equity  in 
which  a  decision  can  be  had.  I  have  already 
explained  the  reason  for  that,  —  because  it  might 
be  unnecessary  to  go  beyond  the  judicial  power  of 
a  State  to  get  the  proper  interpretation  of  the  Con- 
stitution, or  treaty,  or  statute'  in  question ;  and 
until  you  have  the  decision  of  the  highest  court  of 


^  [See  p.  93,  infra,  where  this  snhject  is  treated  more  fnlly  in  con- 
nection with  appeals  and  writs  of  error  taken  from  or  to  the  inferior 
Federal  Courts.  St.  Clair  Countij  v.  Lovingston,  18  Wallace.  628; 
Parcels  v.  Johnson,  20  Ibid.  653.] 

2  [See  also  Ko/d  t.  United  States,  91  TJ.  S.  367,  375.] 


30       JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

the  State,  and  that  decision  is  against  the  right 
thus  claimed,  you  have  no  occasion  and  no  power 
to  appeal  to  the  Supreme  Court  of  the  United 
States.^ 

What  is  "the  highest  court"  of  course  depends 
entirely  upon  the  laws  of  the  State ;  hut  the  details 
of  the  State  law  cannot  prevent  any  party,  whatever 
the  form  or  mode  of  proceeding  may  be,  from  get- 
ting this  remedy,  if  he  claims  a  right  under  the 
Constitution,  treaties,  or  statutes  of  the  United 
States,  or  any  authority  exercised  by  virtue  of 
either.''^ 

There  are  many  cases  arising  under  the  laws  of 
the  States,  in  which  a  question  can  be  carried  to  a 
higher  court,  and  the  record  of  the  suit  does  not  go 
there.  For  instance,  in  the  Supreme  Court  of 
Massachusetts,  a  case  is  carried  from  a  term  of  the 
Supreme  Judicial  Court,  which  sits  for  a  county, 
to  what  we  call  the  full  court,  the  court  for  the 
Commonwealth,  and  enough  of  the  proceedings  is 
sent  up  for  that  court  to  see  what  question  is  to  be 
decided ;  when  they  have  made  a  decision,  they 
send  a  rescript  to  the  lower  court,  informing  it 
what  the  decision  is,  and  in  many  cases  directing 
them  what  judgment  or  order  to  enter  in  the  case ; 

1  In  the  Eevised  Statutes,  the  words  are  "the  highest  court  of  a 
State,"  omitting  the  words  "  of  law  or  e(}uity,"  apparently  upon  the 
idea  that  they  are  superfluous,  or  because  the  courts  of  many  of  tho 
States  now  exercise  botii  law  and  equity  powers. 

-  What  is  requisite  is,  that  the  highest  court  should  he  the  one 
that  has  power  to  make  a  final  decision  ;  and  tliis  may  be  an  inferior 
court,  if  tlie  highest  court  of  all  could  not  have  jurisdiction.  Miller 
V.  Joseph,  17  Wallace,  655.  See  also  Cohens  v.  Virginia,  6  Wheat. 
264. 


THE    SUPREME    COURT.  31 

but,  all  the  time,  the  record  remains  in  the  lower 
court,  and  in  case  a  writ  of  error  is  to  be  taken, 
inasmuch  as  the  record  remains  in  the  lower  court, 
and  it  is  a  copy  of  the  record  which  is  to  be  sent  up 
under  the  writ  of  error,  the  writ  of  error  must  go 
to  that  lower  court,  where  the  record  remains.  It 
may  remain  in  the  Superior  Court  in  Massachu- 
setts, it  may  remain  in  the  Supreme  Court  for  the 
county;  but  wherever  the  record  is  found,  there 
the  writ  of  error  is  to  go,  in  order  to  bring  up  the 
record.  You  will  find  some  decisions  on  this  sub- 
ject, which  may  be  interesting  to  you,  in  the  case 
of  Grehton  v.  Hoyt^  3  Wheaton,  246,  and  Kanouse 
V.  3Iart{n,  15  Howard,  198. 

Passing  beyond  these  points,  we  come  to  the 
grounds  of  jurisdiction ;  that  is,  the  grounds  upon 
which  the  Supreme  Court  may  take  and  exercise 
jurisdiction.  They  are  specially  described  in  the 
statute:  "Where  is  drawn  in  question  the  validity 
of  a  treaty,  or  statute,  of  the  United  States,  or  an 
authority  exercised  under  the  United  States,  and 
the  decision  is  against  their  validity ;  or  where  is 
drawn  in  question  the  validity  of  a  statute  of  a 
State,  or  an  authority  exercised  under  any  State, 
on  the  ground  of  their  being  repugnant  to  the  Con- 
stitution, treaties,  or  laws  of  the  United  States,  ^ 
and  the  decision  is  in  favor  of  their  validity;  or 
where  is  drawn  in  question  the  construction  of  any 
clause  of  the  Constitution  of  the  United  States,  or 
of  a  treaty,  or  statute  of  the  United  States,  or  com- 

1  [The  question  whether  a  statute  of  a  State  conflicts  with  the  Con- 
stitution of  that  State  does  not  come  within  this  act.  Mitchell  v. 
C/«?-/,-,  noU.  S.  633] 


32       JURISDICTION,   PKACTICE,    AND   JURISPRUDENCE. 

mission  held  under  the  United  States."^  In  all 
these  cases,  the  party  who  has  set  up  any  right, 
privilege,  or  exemption  by  reason  of  the  Constitu- 
tion, laws,  or  treaties  of  the  United  States,  and  the 
decision  is  against  him,  or  where  he  has  asserted 
that  a  State  law  is  not  binding,  because  it  is  in 
conflict  with  the  Constitution  of  the  United  States, 
and  the  decision  is  in  favor  of  the  State  law,^  then 
he  may  have  the  subject  reviewed  in  the  Supreme 
Court  of  the  United  States. 

Now,  the  first  inquiry  is.  How  shall  it  be  made 
to  appear  to  the  Supreme  Court  of  the  United  States 
that  one  of  these  things  has  been  drawn  in  ques- 
tion, and  that  a  decision  has  been  reached  such  as 
is  described  in  this  section,  for  or  against  the 
privilege  claimed,  according  to  the  nature  of  that 
privilege  ? 

On  this  point  very  grave  difficulties  have  been 
encountered,  and  a  great  number  of  decisions  made. 
I  will  endeavor  to  state  to  you  a  few  rules,  which  I 
think  will  afford  sufficient  guides  in  the  inquiry 
whether  either  of  these  questions  can  be  made  to 
appear  to  the  Supreme  Court  of  the  United  States 
to  have  been  drawn  in  question.     And  I  must  state, 

'  [This  clause  now  reads  as  follows  :  "  or  where  any  title,  right, 
privilege,  or  immunity  is  claimed  under  the  Constitution,  or  any 
treaty  or  statute  of,  or  commission  held,  or  authority  exercised  under 
the  United  States."     Rev.  Stat.  709.     See  pp.  46-58,  /?!/;•«.] 

2  [It  is  important  for  the  student  to  remember  that  in  every  case 
the  decision  must  be  against  the  right  or  immunity  set  up  under  the 
United  States  Constitution,  laws,  or  treaties.  Tlie  fact  that  such  a 
jurisdictional  or  "  Federal^'  question  is  raised,  and  is  decided  wrongly 
by  the  State  court,  is  not  sufficient  to  give  the  United  States  Supreme 
Court  jurisdiction.  The  right,  etc.,  must  be  decided  against  the  party 
setting  it  up.     Murdoch  v.  Memphis,  20  Wall.  590,  626.] 


THE    SUrKEME   COURT.  33 

in  the  first  place,  that,  in  acting  on  the  writ  of 
error,  the  Supreme  Court  have  before  them  only  the 
record  of  the  State  court.  They  have  nothing 
before  them  except  the  record,  which  includes  —  as 
you  know  —  the  pleadings  and  the  verdict  and  judg- 
ment, if  it  is  a  case  at  law;  and  if  there  has  been 
a  trial  by  jury,  the  bill  of  exceptions,  if  any  excep- 
tions were  taken,  showing  what  points  were  made 
at  the  trial,  and  what  the  rulings  of  the  court  below 
were  upon  them;  and  that  bill  of  exceptions 
becomes,  when  properly  taken  and  allowed,  a  part 
of  the  record.  In  equity,  they  have  the  bill,  the 
answer,  the  replication,  the  evidence,  and  the 
decree,  or  decrees,  if  there  were  more  than  one. 
These  are  the  records  in  law  and  in  equity,  and 
they  are  before  the  Supreme  Court  of  the  United 
States,  from  the  State  court,  for  them  to  examine, 
and  thus  determine  whether  any  one  of  these  ques- 
tions has  arisen,  which  is  described  in  this  twenty- 
fifth  section.-' 

Now,  after  the  case  is  entered  upon  the  calendar 
of  the  Supreme  Court,  if  the  opposing  counsel, 
upon  examination  of  the  record,  thinks  it  is  doubt- 
ful whether  the  court  has  jurisdiction,  because  he 
thinks  it  is  doubtful  whether  either  of  the  questions 
designated  in  the  twenty-fifth  section  has  arisen, 
he  is  at  liberty,  on  any  motion  day,  to  file  a  motion 
to  dismiss  the  writ  of  error  upon  the  ground  that  it 
does  not  disclose  any  question  over  which  the  court 
has  jurisdiction ;  that  motion  is  heard  as  a  pre- 
liminary question;  and  if  the  court,  on  looking  into 

1  [The  record  now  includes  the  opinion  of  the  court.     See  p.  48, 
infra.] 

3 


34       JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

the  record,  find  no  qnestion  there,  under  the  twenty- 
fifth  section,  they  dismiss  the  writ  of  error.  On 
the  other  hand,  if  no  such  motion  is  made,  and  the 
case  comes  to  a  hearing  on  its  own  merits,  if  the 
court  then  find,  on  their  own  examination,  that 
there  is  no  question  under  the  twenty-fifth  section 
over  which  they  have  jurisdiction,  they,  ex  mero 
motu,  dismiss  the  writ  of  error;  they  are  careful 
not  to  exercise  jurisdiction  in  any  case  unless  it 
has  been  given  to  them  by  some  Act  of  Congress, 
their  whole  appellate  jurisdiction  being  regulated 
by  Congress. 

In  what  way  is  it  to  be  made  to  appear  on  the 
record  that  a  jurisdictional  question  has  arisen  ? 
How  will  you  have  the  record  framed,  so  that  it 
shall  be  made  to  appear  to  the  Supreme  Court  of 
the  United  States,  when  the  record  goes  there  on  a 
writ  of  error,  that  one  of  these  questions  has  arisen  ? 
Suppose,  for  instance,  that  a  suit  is  brought  on  a 
contract.  A  State  law  is  set  up,  which,  in  effect, 
has  done  away  with  the  contract,  or  modified  it  in 
such  a  way  that  the  action  would  not  lie  in  con- 
formity with  the  State  law;  but  the  promisee  of 
that  contract,  the  person  contracted  with,  insists 
that  this  State  law  is  invalid,  because  it  impairs 
the  obligation  of  his  contract.  In  what  way  will 
you  get  that  question  on  the  record,  so  that  it  can  be 
carried  to  the  Supreme  Court  of  the  United  States  ? 

There  are  various  ways,  depending  upon  the 
nature  of  the  proceeding.  If  it  be  an  action  at 
law,  and  there  is  a  trial  by  a  jury,  you  request  the 
judge  to  instruct  the  jury,  as  a  matter  of  law,  that 
this  State  law  has  impaired  the  obligation  of  that 


THE   SUPREME   COURT.  35 

contract,  and  therefore  is  invalid,  under  the  Con- 
stitution of  the  United  States,  and  is  to  be  disre- 
garded by  them.  If  he  gives  the  instruction,  of 
course  he  is  bound  to  carry  it  out,  and  see  that  the 
jury  do  so;  and  if  they  find  a  verdict  contrary  to 
his  instructions,  he  is  bound  to  set  it  aside.  On 
the  other  hand,  if  he  refuses  to  give  the  instruction, 
if  he  says,  "  My  opinion  is,  that  this  State  law  does 
not  impair  the  obligation  of  that  contract,  and 
therefore  is  not  invalid  under  the  Constitution," 
you  may  take  your  exception  to  that  ruling;  he 
signs  and  seals  that  exception;  it  becomes  a  part 
of  the  record ;  and  when  the  case  comes  before  the 
Supreme  Court  of  the  United  States,  there  is  on  the 
record  the  evidence  that  that  question  was  raised, 
and  decided  by  that  court.  You  may  have  been 
obliged  to  carry  it  to  a  higher  court,  to  get  their 
decision;  but  that  is  the  way  you  get  it  on  the 
record  in  an  action  at  law,  by  a  request  for  instruc- 
tion, a  refusal  of  the  request,  and  then  the  ques- 
tion whether  the  request  was  rightly  or  wrongly 
refused,  may  be  carried  to  the  Supreme  Court.  On 
the  other  hand,  in  a  suit  in  equity,  if  the  com- 
plainant has  a  case  where  he  wishes  to  raise  such  a 
question,  the  bill  itself,  by  the  proper  averments 
and  charges,  can  raise  the  question,  or,  if  the 
defendant  intends  to  raise  such  a  question,  he  can 
do  it  in  his  answer.  And  in  the  decree  there 
always  should  appear,  if  there  is  such  a  question  in 
the  case,  evidence  that  it  was  raised,  that  it  was 
decided,  and  how  it  was  decided. 

1   ought   to   say  here    that,    although   it   is   the 
dictate  of  prudence,  and  a  very  obvious  one,  where 


36       JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

it  is  intended  to  carry  a  question  of  this  kind  to 
the  Supreme  Court  of  the  United  States,  to  take  the 
measures  I  have  spoken  of,  —  to  place  upon  record 
the  fact  that  the  question  was  made  and  decided, 
and  how  it  was  decided,  —  nevertheless,  it  has  been 
settled  that  it  is  not  necessary  that  the  record 
should  in  terms  state  these  things.  It  is  only 
necessary  that,  when  the  court  look  into  the  record, 
they  should  find  that,  by  necessary  intendment,  as 
it  is  called,  —  that  is,  by  the  natural  and  necessary 
meaning  of  what  they  read, — there  was  such  a 
question  raised,  and  that  it  was  decided,  and  how 
it  was  decided.  This  subject  was  a  great  deal 
discussed  in  the  case  of  Furman  v.  Nicliol,  8  Wal- 
lace, 44;  so  that  if  you  are  unfortunate  enough 
to  have  any  record  which  does  not  in  terms  state 
that  one  of  these  questions  was  raised,  still,  if  you 
can  satisfy  the  court  that  it  was  a  necessary  intend- 
ment that  the  State  court  could  not  have  arrived  at 
the  result  they  did  without  coming  in  conflict  with 
the  Constitution  of  the  United  States,  that  may  be 
sufficient.  And  perhaps  I  ought  to  say  that  dif- 
ferent judges  have,  at  different  times,  attempted  to 
make  an  enumeration  of  the  different  modes  in 
which  the  record  may  show  that  such  questions 
arose,  and  it  may  be  very  well  for  you  to  look  at 
two  of  the  leading  cases  on  that  subject.  The  first 
is  Crowell  v.  Bandell,  10  Peters,  368,  where  Mr. 
Justice  Story  endeavored  to  enumerate  the  different 
modes  in  which  the  record  may  show  that  one  of 
these  questions  arose,  without  stating  it  in  terms; 
a  later  case  is  Armstrong  v.  The  Treasure!'  of 
Athens  County,  16   Peters,   281. 


THE   SUPREME   COURT.  37 

In  this  connection,  I  wish  to  ask  your  attention 
to  a  state  of  things  which  has  given  rise  to  many 
emharrassments  in  the  Supreme  Court.  We  will 
suppose  a  case  where  the  record  shows  that  a  ques- 
tion was  raised,  under  the  twenty-fifth  section,  and 
that  the  highest  court  of  the  State  decided  against 
the  right,  or  title,  or  claim,  which  was  made  under 
the  Constitution,  or  treaties,  or  statutes  of  the 
United  States;  there  is  no  doubt  about  that,  and 
there  is  no  doubt  that  they  decided  wrongly;  and 
if  the  case  turned  wholly  on  that  question,  the 
judgment  must  be  reversed,  and  the  case  sent  back 
to  be  proceeded  with,  in  conformity  with  the  opinion 
of  the  Supreme  Court.  ,  But  now  let  us  suppose 
that  in  that  case  there  is  a  question  of  State  law, 
• —  not  one  of  these  questions,  under  the  twenty-fifth 
section,  but  a  question  of  the  local  law  of  the  State, 
and  that  the  case  might  turn  on  that  question,  as 
well  as  on  the  other;  that,  even  if  the  other  was 
decided  wrongly,  there  is  a  question  of  State  law 
in  the  case,  over  which  the  highest  court  of  the 
State  has  the  ultimate  control,  on  which  they  could 
have  decided  the  case  just  as  they  did  decide  it, 
and  enter  the  same  judgment  which  was  entered. 
Well,  under  that  state  of  things,  the  Supreme  Court 
have  held  that  they  cannot  reverse  the  judgment, 
because  it  would  be  useless.  If  they  reverse  the 
judgment,  and  send  the  case  back,  the  State  court 
may  say :  "  Well,  we  were  wrong  about  that  ques- 
tion of  United  States  law,  but  here  is  another  ques- 
tion upon  which  the  judgment  depends;  we  are 
right  about  that,  and  we  will  enter  the  same  judg- 
ment we  did  before. "     That  has  occurred  more  than 


38       JUEISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

once,  and  it  is  now  settled,  as  you  will  find  by 
looking  at  the  cases  of  Neilson  v.  Lagoiv,  12 
Howard,  98,  and  Maguire  v.  Tyler,  8  Wallace, 
650,  that  on  that  state  of  facts  the  Supreme  Court 
will  not  reverse  the  judgment.  ^ 

But  then  there  is  another  posture  in  which  a  case 
may  come  there,  which  is  more  embarrassing.     We 
will  suppose  that,  as  in  the  other  case,  there  was  a 
question  under  the  twenty-fifth  section  appearing  on 
the  record,  which  the  State  court  decided  wrongly; 
they  did  not  give  due  effect  to  the  Constitution,  the 
treaty,  the  Act  of  Congress,  or  the  authority  claimed 
under  the  United  States ;  but  the  counsel  in  argu- 
ment in  the  Supreme  Court  say,  "  Here  is  another 
question,    under   the    State   law,    which   might   be 
raised ; "  they  do  not  show  that  it  was  raised ;  they 
do  not  show  that  the  State  court  proceeded  upon 
that  other  question ;  but  they  simply  say,  "  Here  is 
a  question  of  local  law,  and  the  court  below  might 
have  proceeded  upon  that ;  non  constat  but  they  did 
proceed  upon   it;  and  they  had  a  right  to  decide 
that  question,    and  they  had  a  right  to  enter  this 
judgment,    if  they  thought  that  question  ought  to 
be  decided  in  a  particular  way. "     Now  these  cases 
to  which  I  have  just  referred  settle  that,  if  it  does 
not  appear  on  the  record  that  the  State  court  did  in 
truth    decide    on   that   question  of   local  law,    the 
Supreme    Court  will   presume   that   they   did   not 
decide  upon  that  question,  provided  the  decision 
Would    be  wrong  in  the  judgment  of  the  Supreme 
Court. 

In  the  first  of  these  cases  —  Neilson  v.   Lagow 

1  See  the  case  of  Keith  v.  Clark,  97  U.  S.  454. 


THE   SUPRExME   COUKT.  39 

—  there  was  a  question  under  the  twenty-fifth  sec- 
tion. The  Supreme  Court  held  that  the  State 
court  had  not  rightly  interpreted  the  Act  of  Con- 
gress, and  therefore  that  the  judgment  should  be 
reversed.  "  But, "  said  the  counsel  for  the  defendant 
in  error,  "this  deed  which  is  relied  upon  by  the 
plaintiff  in  error  is  not  a  deed  that  will  carry  a 
fee,  according  to  the  laws  of  Illinois ;  for  the  word 
'  heirs  '  is  not  mentioned  in  it,  and  therefore  it  may 
be  that  the  Supreme  Court  decided  this  case  in 
favor  of  the  defendant  below,  by  reason  of  that 
defect  in  the  deed."  The  Supreme  Court  looked 
into  that  question  of  local  law;  they  were  satisfied 
that  the  insertion  of  the  word  "heirs"  was  not 
necessary,  according  to  the  local  law,  in  that  par- 
ticular case,  it  being  a  conveyance  to  a  trustee,  who 
had  duties  to  perform  which  required  him  to  take  a 
fee ;  therefore  they  said,  "  We  will  not  believe,  in 
the  absence  of  direct  evidence,  that  the  court  below 
decided  this  case  on  that  question,  because,  if  they 
did,  they  decided  it  wrong,  and  therefore  we  shall 
consider  that  no  such  decision  was  made. "  ^  This, 
1  believe,  will  put  you  in  possession  of  these  two 
points  in  regard  to  a  case  turning  possibly  on  local 
law,  in  which  case  the  highest  court  of  the  State  of 

1  [The  converse  of  Neilson  v.  Latjow  is  found  in  Klinger  v.  State  of 
Missouri,  13  Wall.  257.  There,  as  in  Neihon  v.  Lagow,  two  questions 
were  involved,  one  question  under  the  twenty-fiftli  section,  and  another 
question  relating  to  common  law;  and  it  did  not  appear  upon  which 
question  the  State  court  had  based  its  judgment.  But  in  this  case 
the  Supreme  Court  found  that  a  right  decision  of  the  common-law 
point  involved  would  justify  the  judgment  of  the  State  court,  and 
accordingly  the  writ  of  error  was  dismissed.  See  also  Johnson  v. 
Risk,  137  U.  S.  300,  307.] 


40      JUKISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

course  has  authority  to  determine,  and  which,  ulti- 
mately, the  Supreme  Court  of  the  United  States 
has  no  authority  to  determine,  when  it  comes  from 
the  State  court,  unless  there  has  been  a  change  in 
the  legislation  of  Congress,  to  which  I  shall  pres- 
ently ask  your  attention,  but  which  need  not  be 
considered  in  this  connection. 

There  is  one  other  thing  which  you  ought  to 
notice,  and  that  is,  whether  it  is  necessary  for  the 
record  to  show  that  there  was  pointed  out  to  the  State 
court  the  particular  Act  of  Congress,  or  particular 
clause  in  the  Constitution,  or  particular  clause  in 
the  treaty,  on  which  reliance  is  placed;  or  whether 
it  is  sufficient  to  have  the  record  show,  generally, 
that  some  Act  of  Congress,  or  some  treaty,  or  some 
provision  of  the  Constitution,  was  relied  upon.  I 
am  sorry  to  say  that  the  decisions  upon  that  subject 
are  conflicting,  and  it  will  remain  for  the  Supreme 
Court  to  endeavor  to  reconcile  them,  or  overrule 
some,  or  affirm  others.  The  only  thing  I  can  do  to 
assist  you  on  the  subject  is  to  give  you  a  reference 
to  the  two  classes  of  cases.  There  is  one  class  of 
cases  which  affirms  that  you  must  bi'ing  to  the 
notice  of  the  State  court  the  particular  Act  of  Con- 
gress on  which  you  rely:  Maxwell  v.  Newbold,  18 
Howard,  511;  Farney  v.  Towle,  1  Black,  350; 
Messenger  v.  Mason,  10  Wallace,  507.  They  are  in 
the  affirmative  of  the  proposition,  — that  the  record 
must  show  that  the  particular  clause  of  the  law, 
treaty,  or  Constitution  was  brought  to  the  notice  of 
the  court.  On  the  other  hand,  so  far  as  respects 
the  Constitution  of  the  United  States,  the  record 
need   not    show   that    the    particular    clause   was 


THE   SUPREME    COURT.  41 

brought  to  the  notice  of  the  court,  as  in  the 
cases  of  Brid(je  Proprietors  v.  Hohoken  Company, 
1  Wallace,  116,  and  Furman  v.  NicJiol,  8  Wallace, 
44,  to  which  I  have  already  referred  for  another 
purpose. 

Perhaps  a  solution  of  the  question  may  be  found 
by  inquiring  in  each  case  whether  the  record  satis- 
factorily shows  that  one  of  the  jurisdictional  ques- 
tions was  raised  and  decided,  and  how  decided.^ 
It  would  generally  be  difficult  to  make  these  appear 
without  evidence  what  statute,  treaty,  or  consti- 
tutional provision  was  brought  to  the  attention  of 
the  court,  and  relied  on;  but,  as  in  the  case  of 
Furman  v.  NicJiol,  it  is  not  impossible,  and  so  not 
technically  and  always  necessary. 

Many  decisions  have  been  made  upon  the  words, 
"  where  is  drawn  in  question  the  validity  of  a  treaty 
or  statute  of,  or  an  authority  exercised  under,  the 
United  States."  The  decisions  on  this  subject  are 
so  numerous  that  perhaps  the  best  I  can  do  will  be 
to  refer  you  to  Curtis's  Digest,  p.  273,  near  the 
bottom  of  the  page,  where  you  will  find  the  title 
under  which  these  cases  are  collected. 

You  should  notice  that  the  writ  of  error  to  the 
State  court,  under  the  twenty-fifth  section,  includes 
criminal  ^  as  well  as  civil  cases,  and  is  wholly  irre- 
spective of  the  amount  in  controversy.  When  you 
come  to  look  at  the  appellate  jurisdiction  of  the 

1  [The  suggestion  here  made  is  a  good  statement  of  the  law  as  it 
is  now  hxid  down.  See  liobjj  v.  Colehour,  146  U.  S.  153,  and  p.  54, 
et  seq.,  infra ^ 

2  [Twitchell  v.  The  Commonwealth,  7  AYall.  321  ;  Bonahan  v 
Nebraska,  125  U.  S.  692  ] 


42       JURISDICTION,   PRACTICE^   AND   JURISPRUDENCE. 

Supreme  Court  over  the  Circuit  Courts  and  District 
Courts,  you  will  find  it  limited  by  the  amount  in 
controversy.  There  is  no  such  limitation  affecting 
writs  of  error  to  the  courts  of  the  State ;  and  that 
is  a  very  just  and  necessary  provision,  because  very 
important  rights  may  depend  upon  a  suit  in  a  State 
court,  where  but  a  small  amount  is  in  controversy, 
and  therefore  any  case,  either  civil  or  criminal, 
whatever  may  be  the  amount  involved,  can  go  up 
from  a  State  court  to  the  Supreme  Court,  under  this 
twenty-fifth  section.  That  subject  was  discussed, 
and  the  law  stated,  in  the  case  of  Twitehell  v.  The 
Commonwealth,  7  Wallace,  321. 

There  are  some  requirements  in  regard  to  prac- 
tice  which  I  think   I    may  usefully  mention.     In 
the  first  place,  a  writ  of  error  to  the  State  court 
must  be  allowed,  either  by  the  presiding  judge  of 
the  State  court  in  which   the  final  decision  was 
made,  or  by  some   judge  of  the   Supreme  Court  of 
the  United  States.     That  was  decided  in  the  case 
of   Gleason  v.  Florida,  9  Wallace,   779,  and  it  has 
always  been  the  practice,  and  always  understood  to 
be  the   law,  that  a  writ  of  error  to  a  State  court 
should  not  issue,  except  upon  the  allowance  of  the 
presiding  judge  of  that  court,  or  some  justice  of  the 
Supreme  Court  of  the  United  States.     The  writ  is 
issued  either  by  a  clerk  of  the  Circuit  Court,  or  by 
the   clerk   of  the    Supreme    Court   of   the   United 
States.     Usually,  the  clerk  of  the  Circuit  Court  in 
the  district  where  the  decision  of  the  State  court 
was  made  is  applied  to,  and  issues  the  writ,  because 
it  is  more  convenient;  but  the  clerk  of  the  Supreme 
Court  of  the  United  States  is  equally  competent  to 


THE   SUPREME   COURT.  43 

issue  it.  If  you  will  refer  to  the  Appendix  to 
Curtis's  Digest,  you  will  find  there  the  particular 
forms,  —  and  directions  how  to  proceed  to  obtain 
such  a  writ  of  error,  —  how  the  writ  is  to  be  allowed, 
how  the  required  bond  is  to  be  given,  and  all  the 
necessary  directions  for  obtaining  such  writs  of 
error.  It  is  unnecessary  for  me  to  repeat  them, 
because  it  is  better  that  you  should  look  at  them 
yourselves.  I  wish,  however,  to  give  one  caution, 
and  that  is,  you  will  find  it  stated  there,  that  if  the 
judgment  of  the  State  court  was  rendered  less  than 
thirty  days  before  the  next  session  of  the  Supreme 
Court  to  which  the  writ  of  error  must  be  return- 
able, —  because  the  writ  is  always  returnable  to 
the  next  session  after  the  case  is  decided,  —  if 
rendered  less  than  thirty  days  before  the  next 
session  of  the  Supreme  Court,  then  it  may  be  made 
returnable  in  term,  so  as  to  get  the  thirty  days' 
notice ;  and  that  was  believed  by  me,  at  that  time, 
to  be  law.  Whether  it  was  or  not,  the  subject  is 
now  regulated,  and  it  is  important  for  you  to  know 
it.  By  the  fourth  clause  of  the  eighth  rule  of  the 
Supreme  Court  of  the  United  States,  they  have 
regulated  this  whole  matter  of  the  returns  of  writs 
of  error,  and  removed  all  doubts,  if  any  existed 
before.  ^ 

The  writ  of  error  is  directed  to  the  clerk  of  the 
court  where  the  record  is,  and  commands  him  to 
return  an  authenticated  copy  of  that  record  to  the 

1  [The  ■writ  of  error  must  be  taken  within  two  years  after  the 
judgment  or  decree  complained  of  was  rendered.  See  Rev.  Stat. 
§§  1003,  1008,  as  construed  by  the  Supreme  Court  in  Cummings  v. 
Jones,  104  U.  S.  419.] 


44       JUKISDICTIOIf,   PEACTICE,  AND   JURISPRUDENCE. 

Supreme  Court  of  the  United  States.  In  obedience 
to  that  order,  he  makes  out  a  copy  of  that  record 
as  it  remains  in  his  custody,  certifies  it,  and  annexes 
it  to  the  writ  of  error,  and  returns  it  to  the 
Supreme  Court  of  the  United  States,  and  thus  the 
proceeding  gets  before  that  court.  If  the  writ  of 
error  is  to  act  as  a  supersedeas,  as  it  is  called,  — 
that  is,  to  stay  the  execution  of  judgment, — then 
it  is  necessary  to  give  a  bond,  and  the  bond  must 
give  adequate  security  for  the  performance  of  that 
judgment  in  case  it  should  be  affirmed  by  the 
Supreme  Court  of  the  United  States.  If  it  is 
reversed,  of  course  the  bond  falls  with  the  judg- 
ment; if  it  is  affirmed,  then  the  bond  goes  into 
operation,  and  is  security  that  the  judgment,  what- 
ever it  is,  shall  be  satisfied.  If,  however,  the  judg- 
ment in  the  State  court  is  in  favor  of  the  defendant, 
then  there  is  nothing  in  issue  except  the  costs,  and 
the  bond  is  only  given  by  the  plaintiff  for  the 
costs.  If  he  fails  to  give  that  bond,  the  defen- 
dant may  take  out  his  execution,  and  collect  his 
costs.  If  he  chooses  to  give  it,  he  stays  that 
execution  until  there  is  a  final  decision  by  the 
court  above. 

Now,  there  is  one  remaining  question,  which  is 
an  important  one,  and  I  will  occupy  the  few 
moments  which  remain  of  the  hour  in  stating  to 
you  what  it  is.  This  twenty-fifth  section  contains, 
at  its  close,  this  important  restriction:  "But  no 
other  error  shall  be  assigned  or  regarded  as  a 
ground  of  reversal,  in  any  such  case  as  aforesaid, 
than  such  as  appears  on  the  face  of  the  record,  and 
immediately    respects   the  before-mentioned   ques- 


THE    SUPREME   COURT,  45 

tions  of  validity  or  construction  of  the  said  Constitu- 
tion, treaties,  statutes,  commissions,  or  authorities 
in  dispute."  That  is,  according  to  that  section, 
the  Supreme  Court  of  the  United  States  can  inquire 
into  no  error  in  the  record  except  one  of  these 
questions  under  this  twenty-fifth  section ;  and  if 
they  find  there  is  no  error  of  that  kind,  they  affirm 
the  judgment,  and  send  the  proceeding  back  to  the 
State  court,  to  have  them  execute  their  former 
judgment.  But  in  1867,  in  the  Act  of  February  5, 
found  in  the  Statutes  at  Large,  Vol.  XIV.  p.  386, 
§  2,  this  twenty-fifth  section  was  re-enacted  in  so 
many  words,  leaving  out  that  clause  which  restricted 
the  Supreme  Court  to  inquiring  into  these  par- 
ticular errors;  it  dropped  that  clause  entirely. ^ 
Now  the  question  is  whether  that  clause  is  repealed, 
and  on  that  question  there  is  much  to  be  said  on 
both  sides.  I  do  not  propose  to  detain  you  upon 
that,  but  I  will  refer  you  to  the  case  of  Stewart  \. 
Kahn,  11  Wallace,  502,  where  you  will  find,  not  a 
decision,  but  a  pretty  strong  intimation,  that  the 
court  viewed  that  omission  as  being  in  the  nature 
of  a  repeal  of  that  restriction.     There  is  another 

1  [Soon  after  this  lecture  was  delivered,  —  namel}-,  December  1, 
1873,  —  the  Revised  Statutes  were  enacted,  and  this  Act  of  1867,  sect. 
2,  was  embodied  in  Revised  Statutes,  §  709,  with  the  same  omission 
of  the  restrictive  clause  in  the  twenty -fifth  section  of  the  Act  of  1789. 
February  15,  187.5,  by  18  St.  318.  Ch.  80,  this  section.  Rev.  Stat.  709, 
was  verbally  amended  (without  changing  its  meaning),  so  tliat  the 
concluding  part  of  it  now  reads  as  follows :  "  The  writ  shall  have  the 
same  effect  as  if  the  judgment  or  decree  complained  of  had  been 
rendered  or  passed  in  a  court  of  the  United  States.  The  Supreme 
Court  may  reverse,  modify,  or  affirm  the  judgment  or  decree  of 
such  State  court,  and  may,  at  their  discretion,  award  execution,  or 
remand  the  same  to  the  court  from  which  it  was  removed  by  the 
writ."] 


46       JURISDICTION,   PRACTICE,    AND   JURISPRUDENCE. 

case  in  12  Wallace,  694/  where  the  same  subject 
is  touched ;  but  it  is  not  a  settled  question  whether 
or  not  that  restrictive  clause  in   the   twenty-fifth 
section  is  or  is  not  repealed.     And  still  less  is  it 
settled  what   effect   its    repeal  would   have.     The 
latter   question,    in   my   judgment,    involves   more 
difficult  inquiries  than  the  former;  but  this  is  not 
the  place  to  enter  into  them.     You  perceive  the 
great  importance  of  these  inquiries.     They  involve 
the   question  whether  the    Supreme    Court   of   the 
United  States,  on  such  a  record,  can  look  into  any 
error  it  could  find,  whether  it  was  of  local  law,  or 
whether  it  was  one  of  these  jurisdictional  questions ; 
and  there  may  be  cases  where  they  would  decide 
that,    although  the  highest  court  of  the  State  had 
not  committed  any  error  in  deciding  a  jurisdic- 
tional question,   they  had  committed  an  error  in 
deciding  a   question    of   local   law,    and   therefore 
would  reverse  the  judgment.     Now,  whether  Con- 
gress has   the   power   to   grant   this    authority   to 
the  Supreme  Court  to  review,  on  a  writ  of  error, 
any    question    of    local    law,  —  any   question    out- 
side of   those  named   in   the  twenty-fifth  section, 
—  is    a  grave   question,    on    which   I   express    no 
opinion. 

I  believe,  gentlemen,  this  finishes  all  I  have  to 
say  on  the  appellate  jurisdiction  of  the  Supreme 
Court  as  respects  the  State  courts. 

[Shortly  after  this  lecture  was  delivered,  — 
namely,  in  April,  1873,  —  the  subject  came  be- 
fore the  Supreme  Court  in  the  case  of  Murdoch 
V.  The   City  of  Memphis.^    The  case  was  argued, 

1  Trebikock  v.  Wilson.  2  [20  Wall.  590.] 


THE   SUPKEME    COURT.  47 

and,  at  the  request  of  the  court,  reargued  by  dis- 
tinguished counsel,  and  Judge  Curtis,  as  amicus 
curioe,  submitted  a  brief,  which  will  be  found  at 
the  end  of  this  chapter.  From  this  brief  it  will  be 
seen  that  Judge  Curtis  had  solved  the  doubt  which 
he  expressed  in  the  preceding  lecture,  for  he  argues 
that  the  Act  of  1867  did  repeal  the  twenty-fifth 
section  of  the  Act  of  1789,  and  that  the  effect  of 
this  repeal  was  to  give  the  Supreme  Court  authority 
to  pass  upon  every  question  raised  in  a  case  of 
which  they  obtained  jurisdiction  by  reason  of  its 
involving  what  Judge  Curtis  called  a  jurisdic- 
tional question;  and  finally  he  concluded  that 
Congress  had  power  under  the  Constitution  to  con- 
fer this  additional  jurisdiction  upon  the  Supreme 
Court. 

The  court  deliberated  long,  for  the  opinion 
was  not  rendered  till  January,  1875,  and  then  it 
was  not  unanimous.  The  Chief  Justice  did  not 
sit  in  the  case,  and  three  justices  dissented.  The 
majority  of  the  court  took  a  view  different  from 
that  advocated  by  Judge  Curtis,  although  they 
agreed  with  him  upon  the  first  point  arising  in  the 
case.  They  held  that  the  Act  of  1867,  sect.  2  (Rev. 
Stat.  709),  did  indeed  operate  as  a  repeal  of  the 
twenty-fifth  section  of  the  Act  of  1789,  but  they 
also  held,  with  some  hesitation,  that  it  did  not  con- 
fer upon  the  Supreme  Court  any  new  or  additional 
authority  to  pass  upon  questions  of  local  or  com- 
mon law  arising  in  a  case  which  came  before  the 
Supreme  Court  as  one  involving  a  Federal  question. 
"Jurisdictional  question,"  was  the  term  employed 
by  Judge  Curtis,  but  "  Federal   question "  is   the 


48        JUEISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

term  now  in  use,  and  it  was  originated,  I  believe, 
in  Murdock  v.  Memphis. 

In  short,  the  court  held  that  the  new  act,  the 
Act  of  1867,  enlarged  the  powers  of  the  court  in 
respect  to  cases  brought  before  it  by  writ  of  error 
to  the  State  courts,  in  two  respects  only.  First,  it 
gave  the  court  authority  to  look  at  the  opinion 
delivered  by  the  State  court,  as  well  as  at  the 
technical  record.  This,  practically,  was  the  sole 
effect  of  omitting  from  the  new  act  that  clause  of 
the  old  act  which  read  as  follows :  "  But  no  other 
error  shall  be  assigned  or  regarded  as  a  ground  of 
reversal  .  .  .  than  such  as  appears  upon  the  face 
of  the  record,  and  immediately  respects  the  before- 
mentioned  questions  of  validity  or  construction  of  the 
said  Constitution,  treaties,  statutes,  commissions, 
or  authorities  in  dispute." 

The  Supreme  Court  had  always  looked  at  the 
opinion  in  cases  brought  from  the  State  court  of 
Louisiana,  because  under  the  peculiar  practice  of 
that  State,  the  opinion  is  a  part  of  the  technical 
record ;  but  as  to  opinions  of  the  court  in  cases 
arising  in  other  States,  the  Supreme  Court  had 
always  refused  to  examine  them,  inasmuch  as 
they  were  not  a  part  of  that  technical  record  to 
which  the  court  was  confined  by  the  twenty-fifth 
section. 

Secondly,  the  Act  of  1867  provided  that  "the 
Supreme  Court  may,  at  their  discretion,  proceed  to 
a  final  decision  [when  the  judgment  or  decree  of 
the  ^tate  court  is  reversed],  and  award  execution, 
or  remand  the  case  to  the  inferior  court ; "  whereas, 
in  the  old  act,  this  power  of  proceeding  to  a  final 


THE   SUPREME   COURT.  49 

decision  was  given  to  the  Supreme  Court  only  "  if 
the  cause  shall  have  once  heen  remanded  before." 
These  two,  the  court  held,  were  the  only  changes 
introduced  by  the  Act  of  1867,  sect.  2,  which  is 
now  Revised  Statutes,  sect.  709;  and  they  con- 
cluded by  stating  the  following  propositions:  — 

1.  That  it  is  essential  to  the  jurisdiction  of  this 
court  over  the  judgment  or  decree  of  a  State  court, 
that  it  shall  appear  that  one  of  the  questions  men- 
tioned in  the  statute  must  have  been  raised  and 
presented  to  the  State  court ;  that  it  must  have  been 
decided  by  the  State  court  against  the  right  claimed 
or  asserted  by  the  plaintiff  in  error  under  the  Con- 
stitution, treaties,  laws,  or  authority  of  the  United 
States,  or  that  such  a  decision  was  necessary  to  the 
judgment  or  decree  rendered  in  the  case. 

2.  These  things  appearing,  this  court  has  juris- 
diction, and  must  examine  the  judgment  so  far  as 
to  ena])le  it  to  decide  whether  this  claim  of  rioht 
was  correctly  adjudicated  by  the  State  court. 

3.  If  it  finds  that  it  was  rightly  decided,  the 
judgment  must  be  affirmed. 

4.  If  it  was  erroneously  decided  against  the 
plaintiff  in  error,  then  this  court  must  further 
inquire  whether  there  is  any  other  matter  or  issue 
adjudged  by  the  State  court  sufficiently  broad  to 
maintain  the  judgment,  notwithstanding  the  error 
in  the  decision  of  the  Federal  question.  If  this  be 
found  to  be  the  case,  the  judgment  must  be  affirmed, 
without  examination  into  the  soundness  of  the 
decision  of  such  other  matter  or  issue. 

5.  But  if  it  be  found  that  the  issue  raised  by  the 
question  of  Federal  law  must   control  the  whole 

4 


50       JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

case,  or  that  there  has  been  no  decision  by  the  State 
court  of  any  other  matter  which  is  sufficient  of 
itself  to  maintain  the  judgment,  then  this  court 
will  reverse  that  judgment,  and  will  either  render 
such  judgment  here  as  the  State  court  should  have 
rendered,  or  will  remand  the  case  to  that  court  for 
further  proceedings,  as  the  circumstances  of  the 
case  may  require. 

It  will  be  noticed  that,  according  to  the  above 
statement,  the  Supreme  Court  is  bound  to  pass 
upon  a  Federal  question  properly  raised,  no  matter 
what  ultimate  decision  it  may  make  of  the  whole 
case.  But,  supposing  that  the  case  contains  some 
non-Federal  question  sufficient  to  maintain  the 
judgment  without  regard  to  the  Federal  question; 
in  that  event,  since  the  Supreme  Court  are  bound 
to  affirm  the  decision  of  the  State  court,  why 
should  they  consider  the  Federal  question  at  all  ? 
This  point  was  taken,  and  a  motion  to  dismiss  the 
writ  of  error  was  made  in  Railroad  Company  v. 
Maryland,^  decided  at  the  same  time  as  Murdoch  v. 
MempJiis.  But  the  court  said  that,  however  it 
might  have  been  under  the  Act  of  1789,  the  omis- 
sion of  the  restrictive  words  of  that  act  from  the 
Act  of  18G7,  had  made  it  the  duty  of  the  court  to 
pass  upon  the  Federal  question  in  all  cases.  They 
said :  "  The  counsel  of  both  parties  in  this  court  are 
entitled  to  be  heard  when  the  record  shows  the 
existence  of  a  decision  which  gives  us  jurisdiction, 
on  the  soundness  of  that  decision,  on  its  sufficiency 
to  control  the  judgment  in  the  whole  case,  and  on 
the  sufficiency  of  any  other  point  decided  to  affirm 

1  [20  Wall.  643.] 


THE    SUPREME    COUKT.  51 

the   judgment   even    if  the   Federal   question   was 
erroneously  decided." 

But  this  principle,  though  never  expressly  over- 
ruled, was  very  soon  departed  from,  and  has  not 
since  been  observed.  Thus  in  Hale  v.  Akers,^  the 
court  say:  "In  JenJcins  v.  Loewenthal,'^  where  two 
defences  were  made  in  the  State  court,  either  of 
which,  if  sustained,  barred  the  action,  and  one 
involved  a  Federal  question,  and  the  other  did  not, 
and  the  State  court  in  its  decree  sustained  them 
both,  this  court  said  that  .  .  .  even  though  the 
Federal  question  was  wrongly  decided,  it  would 
affirm  the  decree,  without  considering  the  Federal 
question  or  expressing  any  opinion  upon  it,  and  that 
such  practice  was  sustained  by  the  case  of  Murdock 
V.  Citi/  of  Memphis.''^  A  long  list  of  authorities 
follows.      See  also  Ilavimond  v.  Johnston.^ 

The  law  then,  as  now,  interpreted  by  the  Supreme 
Court,  is,  that  if  the  case  brought  by  writ  of  error 
from  the  State  court  contains  a  non-Federal  ques 
tion  sufficiently  broad  to  maintain  the  judgment, 
however  the  Federal  question  might  be  decided,  the 
Supreme  Court  will  affirm  the  decision  of  the  State 
court,  without  considering  the  Federal  question, 
and  without  considering  whether  the  decision  of  the 
non-Federal  question  was  right  or  wrong.  But  if 
it  be  found  that  the  Federal  question  must  control 
the  whole  case,  or  that  there  has  been  no  decision 
by  the  State  court  of  any  other  matter  which  is 
sufficient  of  itself  to  maintain  the  judgment,  then, 
if  the  Federal  question  was  decided  rightly,  the 
Supreme  Court  will  affirm  the  judgment;  if  it  was 

1  [132  U.  S.  554,  565.]         2  [nO  U.  S.  222.]         3  [142  U.  S.  73.] 


52       JUEISDICTION,   PKACTICE,   AND   JURISPRUDENCE. 

decided  wrongly,  the  Supreme  Court  will  either 
render  such  judgment  as  the  State  court  should 
have  rendered,  or  else  remand  the  case  to  that 
court  for  further  proceedings,  as  the  Supreme  Court 
shall  direct. 

For  example,  there  was  a  suit  in  Nebraska  to 
compel  specific  performance  of  a  contract  to  convey 
farm  land  acquired  under  the  United  States  Home- 
stead Law.  The  defence  contended  that  the  con- 
tract was  void  under  that  law.  But  the  State 
court,  without  in  terms  passing  upon  this  question, 
held  that  the  contract  was  good  by  virtue  of  a 
certain  statute  of  Nebraska.  The  United  States 
Supreme  Court,  however,  held  that  the  Federal 
question  was  conclusive  of  the  case,  because  if  the 
contract  violated  an  United  States  law,  it  could  not 
be  made  valid  by  a  State  law.  They  held,  further, 
that  the  contract  was  in  violation  of  the  United 
States  law,  and  therefore  void,  and  they  remanded 
the  case  to  the  State  court  for  further  proceedings 
in  accordance  with  the  opinion  of  which  this  is  a 
summary.^ 

This  case  illustrates  that  class  of  cases  where  the 
Federal  question  is  controlling.  The  following  case 
illustrates  that  class,  mentioned  first  above,  where 
a  non-Federal  question  is  controlling.  A  State 
sued  a  bridge  company  to  collect  a  tax  levied  under 
a  law  of  the  State.  The  bridge  company  raised  a 
Federal  question  by  asserting  that  the  tax  was  void 
under  the  United  States  Constitution,  because  it 
impaired  the  obligation  of  a  previous  contract 
between  the  bridge  company  and  the  State.     But 

1  [Anderson  v.  Carkins,  135  U.  S.  483] 


THE    SUPREME    COURT.  53 

the  State  court  found  that  the  bridge  company  had 
voluntarily  agreed,  at  the  time  of  its  incorporation, 
that  the  bridge  should  be  liable  to  a  tax;  and  this 
point  being  broad  enough  to  maintain  the  decision, 
however  the  Federal  question  might  be  decided,  the 
writ  of  error  was  dismissed.^ 

Finally,  a  case  may  arise  where  a  Federal  and  a 
non-Federal  question  are  involved,  and  where  the 
Federal  question  is  not  conclusive  of  the  case,  or 
was  decided  wrongly  by  the  State  court,  and  where 
the  non-Federal  question  is  sufhcient  to  maintain 
the  judgment,  but  it  does  not  appear  whether  the 
State  court  decided  it  or  not.  In  such  an  event, 
the  Supreme  Court  will  look  to  see  how  the  non- 
Federal  question  ought  to  have  been  decided;  and 
if  they  find  that  a  right  decision  of  it  would  support 
the  judgment  actually  made  by  the  State  court, 
thev  will  infer  that  the  State  court  so  decided,  and 
they  will  affirm  the  judgment.  But  if  they  find 
that  the  State  court  would  have  been  obliged  to 
decide  the  non-Federal  question  wrongly  in  order 
to  reach  the  judgment  which  they  made,  they  will 
not  infer  that  the  State  court  so  decided.  On  the 
contrary,  they  will  infer  that  the  State  court  did 
not  touch  the  non -Federal  question;  and  therefore 
the  Supreme  Court  will  either  decide  the  case  it- 
self on  the  Federal  question  involved  (if  that 
be  broad  enough)  or  remand  the  case  to  the  State 
court. 

Whereas,  if  it  plainly  appeared  from  the  record 
that  the  State  court  had  so  decided,  —  that  is,  had 

1  [Henderson  Bridge  Co.  v.  Henderson  Citi/,  141  U.  S.  679.  See 
also  De  Saussure  v.  Gaillard,  \H  U.  S.  216,  233.] 


54       JURISDICTION,    PRACTICE,    AND    JURISPRUDENCE. 

decided  the  non-Federal  question,  and  decided  it 
wrongly, — the  Supreme  Court  would  aflirm  the 
judgment,  provided,  of  course,  that  the  non-Federal 
question  was  sufficient  to  maintain  the  judgment. 
This  point,  and  it  is  a  rather  subtle  one,  is  stated 
in  substance  on  pp.  38,  39,  supra,  and  it  is  illus- 
trated by  the  cases  of  NeiUon  v.  Lagow,  and  Klinger 
V.  State  of  Missouri,  there  cited. 

It  is  very  important  that  the  record  should  clearly 
show  that  the  Federal  question  was  duly  set  up  in 
the  State  court,  and  passed  upon  by  that  court,  for 
otherwise  the  Supreme  Court  are  at  liberty  to  hold 
that  there  is  no  such  question  in  the  case,  and  to 
dismiss  the  writ  of  error.  The  proper  time  and  the 
proper  way  of  setting  up  the  Federal  question  are 
stated  by  Judge  Curtis  {supra,  pp.  34,  35).  It  has 
been  held  that  it  is  too  late  to  set  up  a  Federal 
question  upon  a  petition  to  the  State  court  for  a 
rehearing.  ^ 

It  is  held  also  that  the  petition  for  the  writ  of 
error  forms  no  part  of  the  record,  so  far  as  the 
Supreme  Court  is  concerned,  and  hence  that  the 
Federal  question  cannot  first  be  set  up  in  that 
petition.  The  opinion,  as  we  have  seen,  is  now  a 
part  of  the  record,  but  it  docs  not  carry  so  much 
weight  as  the  technical  record ;  and  if  the  case 
really  contains  no  Federal  question,  a  statement  in 
the  opinion  that  it  does  so  will  not  suffice.  This 
remark  is  equally  true  of  the  whole  record.  The 
Supreme  Court  say:  "It  is  not  enough  to  give  us 
jurisdiction  over  the  judgments  of  the  State  courts 
for  a  record  to  show  that  a  Federal  question  was 

1  [Miller  v.  Texas,  153  U.  S.  535.] 


THE   SUPREME    COURT.  55 

argued  or  presented  to  that  court  for  decision.  It 
must  appear  that  its  decision  was  necessary  to  the 
determination  of  the  cause,  and  that  it  actually 
was  decided,  or  that  the  judgment  as  rendered  could 
not  have  been  given  without  deciding  it."  ^ 

When  there  is  no  opinion,  or  when  the  opinion 
does  not  mention  the  Federal  question  involved, 
this  deficiency  should  be  supplied  by  a  certificate  of 
the  presiding  justice  of  the  State  court,  setting 
forth  the  Federal  question  involved. ^  But  this 
certificate  is  not  conclusive  of  the  fact  which  it 
states.  "While  always  regarded  with  respect," 
the  Supreme  Court  declare,  "it  cannot  confer  juris- 
diction upon  this  court  to  re-examine  the  judgment 
below." 

In  a  recent  important  case  ^  it  did  not  appear  from 
the  opinion  of  the  court  below  that  a  Federal  ques- 
tion was  raised  or  passed  upon.  The  certificate  of 
the  presiding  judge,  however,  stated  such  a  ques- 
tion, and  stated  that  it  was  decided  adversely  to 
the  plaintiff  in  error.  The  Supreme  Court  there- 
fore looked  into  the  record,  and,  finding  that  "the 
necessary  effect  of  the  decree  "  was  to  determine  a 
Federal  question,  and  to  determine  it  adversely  to 
the  plaintiff  in  error,  they  held  that  the  jurisdic- 
tion attached.  They  quoted  with  approval  what 
had  been  said  in  a  former  case  as  to  the  office  of 
the  certificate;  namely,  that  it  is  "to  make  more 
certain  and  specific  what  is  too  general  and  indefi- 

1  [Citizens'  Bank  v.  Board  of  Liquidation,  98  U.  S.  140.  See  also 
Murdock  V.  City  of  Memphis,  20  Wall.  590,  633.] 

2  [Johnson  V.  Risk,  137  U.  S.  300.] 

3  [Roby  T.  Colehour,  146  U.  S.  153.] 


56       JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

nite  in  the  record. "  The  question  in  this  case  was 
described  by  the  court  as  a  "close  one,"  and  the 
opinion  is  very  instructive  upon  the  subject. 

The  Federal  question  should  also  be  stated  in  the 
assignment  of  errors,  which  is  required  by  Revised 
Statutes,  sect.  997,  in  the  following  language :  — 

"There  shall  be  annexed  to  and  returned  with 
any  writ  of  error  for  the  removal  of  a  cause,  at  the 
day  and  place  therein  mentioned,  an  authenticated 
transcript  of  the  record,  an  assignment  of  errors, 
and  a  prayer  for  reversal,  with  a  citation  ^  to  the 
adverse  party."  No.  21  of  the  United  States 
Supreme  Court  Rules  declares  that  "when  there 
is  no  assignment  of  errors  .  .  .  counsel  will  not 
be  heard  except  at  the  request  of  the  court."  It 
adds,  however,  that  "the  court  at  its  option  may 
notice  a  plain  error  not  assigned  or  specified." 
The  Supreme  Court  Rules  require  also  that  the 
Federal  question  or  questions  relied  upon  shall 
be  stated  in  the  brief  of  counsel  for  the  plaintiff 
in  error. 

The  strictness  of  the  rule  requiring  the  Federal 
question  relied  upon  in  the  United  States  Supreme 
Court  to  have  been  raised  before  the  State  court  is 
shown  by  the  case  of  Morrison  v.  Watso7i.^  This 
was  an  action  of  ejectment  in  a  North  Carolina 
court  to  recover  100  acres  of  land.     The  plaintiff, 

1  [The  citation  must  he  "  signed  hy  the  Chief  Justice  or  Judge  or 
Chancellor  of  the  Court  rendering  or  passing  the  judgment  or  decree 
complained  of,  or  by  a  Justice  of  the  Supreme  Court  of  the  United 
States  in  the  same  manner  ...  as  in  a  court  of  the  United  States." 
Rev.  Stat.  §  709.  As  to  who  should  be  parties  to  an  appeal  or  writ 
of  error,  see  infi-a,  p.  98.] 

^  [154  U.  S.  Ill] 


THE   SUPREME   COUKT.  57 

to  prove  that  he  owned  the  land,  produced  a  deed 
to  him  at  sheriff's  sale  on  execution.  A  statute  of 
the  State  exempted  from  such  levy  and  execution 
all  homesteads  of  a  value  less  than  li'lOOO ;  and  the 
only  defence  in  the  State  court  was  that  this  land 
was  not  worth  1^1000,  But  the  act  of  exemption 
just  stated  was  passed  after  the  contracting  of  the 
debt  for  which  the  land  was  sold ;  and  in  the  United 
States  Supreme  Court  it  was  argued  that  the  State 
statute  was  void,  so  far  as  it  applied  to  this  debt, 
because  it  impaired  the  obligation  of  a  contract. 
This  was  a  valid  defence  and  a  good  Federal  ques- 
tion, but  the  Supreme  Court  held  that  the  defendant 
had  taken  the  point  too  late.  They  said :  "  If  it 
was  not  claimed  in  any  form  before  judgment  in 
the  highest  court  of  the  State,  it  cannot  be  asserted 
in  this  court." 

This  rule,  however,  must  be  taken  as  limited  to 
those  cases  where  a  Federal  question  might  or 
might  not  have  been  present  in  the  minds  of  the 
court.  Sometimes  the  decision  itself  is  of  such  a 
nature  as  to  show  that  a  Federal  question  must 
have  been  passed  upon  by  the  State  court  in  coming 
to  its  conclusion ;  and  in  such  cases  the  Supreme 
Court  are  at  liberty  to  consider  it,  if  they  see  fit, 
although  the  record  (including,  of  course,  the 
opinion)  is  silent  upon  the  subject.  But  they  are 
not  bound  to  consider  it.  Rule  21  (of  the  Supreme 
Court  Rules),  already  cited,  is  declaratory  of  the 
law  in  this  respect,  for  it  provides  that  "when 
there  is  no  assignment  of  errors  .  .  .  counsel  will 
not  be  heard,  except  at  the  request  of  the  court,'' 
and  "  the  court,  at  its  option,  may  notice  a  plain 


58      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

error  not  asdjjned  or  specified,''^     And  the  Supreme 
Court  have  said :  — 

"  It  is  not  always  necessary  that  the  Federal 
question  should  appear  affirmatively  on  the  record. 
or  in  the  opinion,  if  an  adjudication  of  such  ques- 
tion were  necessarily  involved  in  the  disposition  of 
the  case  by  the  State  court. "  ^ 

And  this  is  so  even  although  the  State  court,  in 
its  opinion,  puts  the  decision  entirely  upon  non- 
Federal  grounds.  "  A  judgment  which  rejects  the 
claim  [as  to  a  Federal  question],  but  avoids  all 
reference  to  it,  is  as  much  against  the  right,  within 
the  meaning  of  section  709  of  the  Revised  Statutes, 
as  if  it  liad  been  specifically  referred  to,  and  the 
right  directly  refused. "  ^  On  the  other  hand,  the 
formal  averment  in  the  record  of  a  specific  Federal 
question  is  not  sufficient  to  raise  such  a  question 
when  none  really  exists.  "  It  must  not  be  wholly 
without  foundation.  There  must  be  at  least  color 
of  ground  for  such  averment,  otherwise  a  Federal 
question  might  be  set  up  in  almost  any  case,  and 
the  jurisdiction  of  this  court  invoked  simply  for  the 
purpose  of  delay. "  ^ 

Here  follows  the  brief  submitted  by  Judge  Curtis 
in  Murdoch  v.  The  City  of  Memphis^  supra.'\ 

1  {^Kaukauna  Water  Power  Co.  v.  Green  Bay,  ^-c,  Canal  Co.,  142 
U.  S.  254,  269.     See  also  Arrowsmiih  v.  Harmoning,  118  U.  S.  194.] 

2  {Chapman  v.  Goodnow,  123  U.  S.  540,  548.  See  O'Neil  v.  Ver- 
mont, 144  U.  S.  323,  and  especially  the  dissenting  opinions  which 
seem  to  be  more  logical  than  the  opinion  of  the  majority.] 

3  [New  Orleans  v.  New  Orleans  Water  Works,  142  U.  S.  79,  87. 
See  also  HamUin  v.  Western  Land  Co.,  147  U.  S.  531.] 


THE   SUPREME   COURT.  59 

Some  Observations  concerning  the  Repeal  of  the  Twenty-Fifth  Section  of 
the  Judiciary  Act  o/'1789,  by  the  Second  Section  of  the  Act  of  Feb- 
ruary blh,  1867  ( 14  Statutes  at  Large,  385).  By  Mr.  B.  R.  Curtis, 
as  Amicus  Curia:. 

Three  questions  may  be  considered  :  — 
1st.  Does  tlie  later  statute  repeal  the  earlier  ? 
2d.  If  so,  what  changes  in  the  previously  existing  law  have  been 
made  by  such  repeal  1 

3d.  Had  Congress  power  to  make  these  changes  1 

As  TO  THE  First  Question. 

The  general  subject  of  each  law  is  the  same.  Each  confers  appel- 
late jurisdiction  on  the  Supreme  Court  of  the  United  States,  over 
judgments  of  State  courts,  which,  by  reason  of  their  subject-matter,  are 
within  the  judicial  power  of  the  United  States,  under  the  first  clause 
of  the  second  section  of  the  third  article  of  the  Constitution  ;  and  each 
defines  the  cases  in  which  that  appellate  power  may  be  exercised,  and 
regulates  the  mode  of  exercising  that  appellate  power  under  the 
second  clause  of  the  same  section. 

The  two  laws  differ  in  the  following  particulars  :  — 

1st.  In  defining  the  cases  over  which  tliis  appellate  power  shall 
extend. 

In  the  earlier  law  one  class  of  cases  was  described  as  follows :  "  Or 
where  is  drawn  in  question  the  construction  of  any  clause  of  the  Con- 
stitution, or  of  a  treaty  or  statute  of,  or  commission  held  under  the 
United  States." 

lu  the  later  law  there  is  substituted  the  following  description : 
"  Or  where  any  title,  right,  privilege,  or  immunity  is  claimed  under 
the  Constitution,  or  any  treaty,  or  statute  of,  or  commission  held,  or 
authority  exercised  under  the  United  States,"  etc. 

The  earlier  law  describes  and  includes  only  cases  where  some  ques- 
tion of  construction  is  drawn  in  question.  The  later  law  applies  to 
and  includes  all  cases  where  a  title,  etc.  was  claimed  under  the  Con- 
stitution, etc.,  and  the  decision  was  against  the  validity  of  that  title, 
whether  that  decision  rested  upon  some  question  of  construction  of  the 
Constitution,  or  some  law  or  treaty  of  the  United  States,  or  upon  any 
other  question  entering  into  the  decision  of  the  State  court  on  the 
title  capable  of  being  assigned  as  erroneously  made  in  contravention 
of  law. 

This  latter  description  may  include  cases  other  than  those  em- 
braced in  the  earlier  law.  The  State  court  may  have  decided  against 
the  title,  etc.,  without  misconstruing  the  Constitution  or  any  Act  of 


60      JUEISDICTION,   PKACTICE,    AND    JUKISPRUDENCE. 

Congress,  and  yet  have  made  a  decision  erroneous  in  point  of  law  in 
the  judgment  of  the  appellate  tribunal. 

It  seems  to  have  been  intended  to  place  titles,  rights,  privileges,  or 
immunities  claimed  under  the  Constitution,  laws,  or  treaties,  of  the 
United  States  under  the  final  guardianship  of  this  court,  on  whatever 
questions  of  law  the  same  miglit  depend. 

Suppose  the  State  court  ruled  erroneously  in  admitting  or  reject- 
ing evidence,  or  any  other  question  of  local  law,  and  tlie  decision  was 
against  the  right  or  title,  not  by  reason  of  any  misconstruction  of  the 
Constitution,  but  by  reason  of  such  erroneous  ruling.  It  seems  to 
have  been  the  intention  of  Congress  to  enable  this  court  to  protect 
the  right,  etc.,  claimed  under  the  United  States  from  the  effect  of 
such  errors. 

2d.  The  laws  differ  in  the  regulations  each  prescribes  for  the  regu- 
lation of  the  exercise  of  this  appellate  power. 

The  former  law  restricts  the  assigument  of  errors  to  those  appear- 
ing on  the/ace  of  the  record,  and  it  had  been  construed  strictly  to  refer 
to  the  technical  record. 

The  later  law  omits  this  provision. 

The  former  law  further  restricts  the  appellate  power  of  this  court 
to  errors  "  which  immediately  respect  the  before-mentioned  questions 
of  construction,"  etc. 

The  later  law  contains  no  such  restriction,  and  any  error  in  law 
made  duly  apparent  to  the  court  of  errors  is  left  assignable. 

The  action  of  the  appellate  court  on  reversal  is  not  required  by 
each  law  to  be  the  same.  The  earlier  law  confers  discretion  to  pro- 
ceed to  a  final  judgment,  and  award  execution,  —  ''if  the  cause  shall 
have  been  once  remanded  before."  The  later  law  confers  tliis  discretion 
without  qualification. 

This  is  a  case  where  the  later  statute  was  manifestly  intended  to 
cover  and  provide  for  the  suliject-matter  of  the  earlier  law,  and  to 
qualify  the  provisions  of  the  earlier  law,  not  only  by  omission,  but  by 
addition  and  alteration ;  and  all  authorities,  I  believe,  agree  that  in 
such  a  case  the  later  repeals  the  earlier  act  by  necessary  implication. 
Stewart  v.  Kahn,  II  Wallace,  502;  United  States  v.  Tijnen,  11  AVal- 
lace,  92;  Ellis  v.  Page,  1  Pick.  45 ;  Nichols  v.  Squire,  5  Pick.  168. 

II.  The  changes  made  by  this  repeal  have  already  been  pointed 
out,  and  it  is  unnecessary  to  repeat  them. 

III.  Had  Congress  power  to  make  these  changes  ? 

The  judicial  power  of  tlie  United  States  extends  to  all  cases  aris- 
ing under  tlie  Constitution,  laws,  and  treaties  of  the  United  States, 


THE   SUPREME   COURT.  61 

and  the  appellate  jurisdiction  over  all  these  cases  is  to  be  exercised 
with  such  exceptions  aud  under  such  regulations  as  Congress  may 
make. 

It  is  to  be  observed  that  the  judicial  power  extends  to  cases,  — 
not  merely  to  particular  questions  arising  in  cases. 

And  no  distinction  is  made  by  the  Constitution  between  the  ex- 
tent of  the  judicial  power  which  may  be  exercised  by  courts  of  the 
United  States  having  original  jurisdiction  conferred  by  Congress,  by 
reason  of  tlie  subject-matter  of  the  case,  and  the  extent  of  that  power 
which  may  be  conferred  by  Congress,  to  be  exercised  by  an  appellate 
court.  If  the  case  is  within  the  judicial  power  of  the  United  States, 
the  power  of  Congress  is  as  plenary  to  confer  appellate  power  over  the 
whole  case  as  to  confer  original  jurisdiction  over  it.  And  from  the 
origin  of  the  government,  appellate  power  has  been  conferred  by 
Congress  over  entire  cases  (including  all  questions  arising  in  them), 
which  come  within  the  judicial  power  of  the  iJnited  States,  by  reason 
of  tlieir  subject-matter.  This  was  true  under  the  twelfth  section  of 
the  Judiciary  Act  of  1789.  in  reference  to  lauds  claimed  under  dif- 
ferent States. 

In  Martin  v.  Hunter,  1  Wheaton,  349,  Mr.  Justice  Story,  speaking 
for  the  court,  said:  — 

"This  power  of  removal  is  not  to  be  found  in  express  terms  in  any 
part  of  the  Constitution ;  if  it  be  given,  it  is  only  given  by  implica- 
tion, as  a  jtower  necessary  and  proper  to  carry  into  effect  some  ex- 
press power.  The  power  of  removal  is  certainly  not,  m  strictness  of 
language,  a  grant  of  original  jurisdiction;  it  presupposes  an  exercise 
of  original  jurisdiction  to  have  attached  elsewhere.  The  existence  of 
this  power  of  removal  is  familiar  in  courts  acting  according  to  the 
course  of  the  common  law,  in  criminal  as  well  as  civil  cases,  and  it 
is  exercised  before  as  well  as  after  judgment.  But  this  is  always 
deemed,  in  both  cases,  an  exercise  of  appellate,  and  not  of  original, 
jurisdiction.  If,  then,  the  right  of  removal  be  included  in  the 
appellate  jurisdiction,  it  is  only  because  it  is  one  mode  of  exercis- 
ing tliat  power;  and,  as  Congress  is  not  limited  by  the  Consti- 
tution to  any  particular  mode  or  time  of  exercising  it,  it  may 
authorize  a  removal  either  before  or  after  judgment.  The  time, 
the  process,  and  the  manner  must  be  subject  to  its  absolute  legis- 
lative control.  A  writ  of  error  is,  indeed,  but  a  process  which 
removes  the  record  of  one  court  to  the  possession  of  another  court, 
and  enables  the  latter  to  inspect  the  proceedings,  and  give  such  judg- 
ment as  its  own  opinion  of  the  law  and  justice  of  the  case  may  war- 
rant.   There  is  nothing  in  the  nature  of  the  process  which  forbids  it 


62      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

from  being  applied  by  the  legislature  to  interlocutory  as  well  as  final 
judgment.  And  if  the  right  of  removal  from  State  courts  exists 
before  judgment,  because  it  is  included  in  the  appellate  power,  it 
must,  for  the  same  reason,  exist  after  judgment.  And  if  the  appel- 
late power  by  the  Constitution  does  not  include  cases  pending  in  the 
State  courts,  the  right  of  removal,  which  is  but  a  mode  of  exercising 
that  power,  cannot  be  applied  to  them.  Precisely  the  same  objections, 
therefore,  exist  as  to  the  right  of  removal  before  judgment,  as  after, 
and  both  must  stand  or  fall  together;  nor  indeed  would  the  force  of 
the  arguments  on  either  side  materially  vary,  if  the  right  of  removal 
were  an  exercise  of  original  jurisdiction.  It  would  equally  trench 
upon  tlie  jurisdiction  and  independence  of  State  tribunals." 

In  Mayor  v.  Cooper,  6  Wallace,  247,  it  was  held  that  this  power  of 
removal  on  account  of  the  subject-matter  was  plenary,  and  rested  on 
the  same  ground  as  tlie  twenty-fifth  section  of  the  Act  of  1789. 

In  Osborne  v.  Bank  of  United  States,  9  Wheaton,  823,  the  mean- 
ing and  extent  of  the  Constitution,  and  its  inclusion  of  the  entire 
case,  if  Congress  saw  fit  to  confer  jurisdiction  over  it  as  a  case,  were 
demonstrated  by  Chief  Justice  Marshall,  and  his  exposition  of  the 
plenary  power  of  Congress  over  both  original  and  appellate  jurisdic- 
tion in  such  cases  has  been  deemed  settled.  (See  Fisk  v.  Union 
Pacific  Railroad,  6  Blatch.  362  ;  s.  c,  8  Blatch.  243.)  Unless,  there- 
fore, some  distinction  can  be  made  between  the  power  of  Congress  to 
confer  original  and  appellate  jurisdiction,  and  neither  the  Constitu- 
tion nor  the  decisions  of  this  court  permit  this  distinction,  it  is  clear 
that  Congress  may  confer  appellate  power  over  all  cases  to  which  the 
judicial  power  of  the  United  States  extends,  and  is  not  restricted  by 
the  Constitution  to  particular  questions,  by  reason  of  which  the  cases 
are  brought  within  the  judicial  power  of  the  United  States.  Nor  Is 
it  essential  to  the  grant  of  appellate  power  over  the  State  courts  in 
the  cases  enumerated  in  the  Constitution,  that  the  State  courts  should 
have  actually  decided  some  question  under  the  Constitution,  laws,  or 
treaties  of  the  United  States,  against  a  right,  title,  or  immunity 
claimed  under  them,  or  one  of  them  If  this  were  essential,  there 
could  be  no  removal,  as  provided  by  the  twelfth  section  of  the  Ju- 
diciary Act  of  1789,  or  any  of  the  subsequent  statutes  which  have 
conferred  the  right  to  remove  suits  from  State  courts  before  trial  on 
account  of  their  subject-matter ;  all  of  which  proceed  on  the  assump- 
tion, that,  though  the  right  of  removal  depends  on  the  subject-matter,  the 
State  court  has  not  made  anij  decision  thereon. 

But  it  may  be  argued,  that  if  this  court,  on  a  writ  of  error,  finds 
.  the  State  court  has  rightly  construed  the  Constitution,  and  each  law 


THE   SUPKEME   COURT.  63 

or  treaty  under  which  the  right,  title,  privilege,  or  immnnity  is 
claimed,  and  has  only  decided  erroneously  on  some  other  question  of 
law  on  wliicii  that  right,  title,  etc.,  depended,  there  can  be  no  exercise 
of  the  appellate  judicial  power  of  the  United  States. 

But  this  would  make  the  jurisdiction  to  try  and  decide  the  case 
dependent,  not  on  its  subject-matter,  but  on  the  decision  of  the  appel- 
late court  in  the  exercise  of  its  jurisdiction  concerning  that  subject- 
matter.  This  is  wholly  inadmissible.  When  the  case  comes  into 
this  court,  it  is  within  the  judicial  power  of  the  United  States  by 
reason  of  its  subject-matter ;  and  its  subject-matter  is  not  changed  by 
any  decision  the  court  can  make  thereon. 

It  is  submitted  that,  by  the  Act  of  1867,  Congress  intended  to 
confer  on  this  court  appellate  power  over  the  "  case,"  and  that  it  had 
constitutional  authority  so  to  do. 

Respectfully  submitted  by 

B.  R.  CURTIS,  Amicus  Curice. 


64       JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 


CHAPTER  TIL 

APPEALS  FROM  FEDERAL  COURTS. 

[The  Constitution,  after  declaring  what  shall  be  the 
original  jurisdiction  of  the  Supreme  Court,  goes  on 
to  provide  that  "  In  all  the  other  cases  before  men- 
tioned the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions 
and  such  regulations  as  the  Congress  shall  make." 
Congress,  therefore,  and  Congress  only,  has  power 
to  regulate  the  ajjpellate  jurisdiction  of  the  Supreme 
Court  over  the  inferior  Federal  Courts. 

The  earliest  statute  upon  this  subject  was  the 
Judiciary  Act  of  1789.  This  act  divided  the  United 
States  into  Circuits,  each  Circuit  being  composed  of 
two  or  more  States,  and,  further,  into  Districts,  each 
State  forming  a  District,  except  that  a  few  of  the 
larger  States  were  divided  into  two  or  more  Dis- 
tricts. In  every  Circuit  there  was  established  a 
Circuit  Court,  and  in  every  District  a  District  Court ; 
and  these  are  the  inferior  Federal  Courts  which 
Congress,  pursuant  to  the  power  lodged  in  it  by 
the  Constitution,  created  by  the  Act  of  1789.  These 
courts  are  still  in  existence,  and  in  fact,  down  to  the 
year  1891,  the  Act  of  1789,  with  some  slight  changes, 
remained  in  force.  Under  that  act,  an  appeal  lay 
from  the  District  Court  to  the  Circuit  Court,  and 


APPEALS  FROM  FEDERAL  COURTS.        65 

from  the  Circuit  Court  to  the  Supreme  Court.  In  a 
few  cases,  such,  especially,  as  patent  and  revenue 
suits,  there  was  no  money  limit  to  this  appellate 
jurisdiction ;  but  in  most  cases  an  appeal  to  the 
Supreme  Court  could  not  be  had  unless  the  amount 
involved  exceeded  $2000 ;  and  in  1875  this  sum 
was  raised  to  $5000. 

Under  this  system,  it  was  easy  to  provide  for  the 
increasing  business  of  the  inferior  Federal  Courts 
by  creating  new  Circuits  and  new  Districts ;  but 
there  was  no  way  of  providing  for  the  excess  of 
cases  with  which  the  Supreme  Court  gradually  be- 
came encumbered.  By  1890,  the  business  of  that 
court  was  so  much  in  arrears  that,  on  the  average, 
four  years  elapsed  between  the  time  when  a  case 
was  appealed  from  the  Circuit  Court  and  the  time 
when  it  was  heard  in  the  Supreme  Court.  To  ob- 
viate this  scandalous  delay,  and  to  relieve  the 
Supreme  Court,  Congress,  by  the  Act  of  March  3, 
1891,1  created  nine  Circuit  Courts  of  Appeal, —  one 
for  each  Circuit, 

The  Circuit  and  District  Courts  are  described 
elsewhere  in  this  book,  but  a  few  words  about  them 
here  will  be  necessary  to  afford  an  understanding  of 
the  Circuit  Courts  of  Appeal.  There  is  one  District 
Judge  in  every  District,  appointed,  it  need  not  be 
said,  by  the  President.  Originally,  the  Judges  of  the 
Circuit  Court  were  the  Justices  of  the  Supreme 
Court,  each  of  whom  (and  this  practice  still  holds) 
was  assigned  to  a  particular  Circuit,  and  he  held 
court  in  that  Circuit  when  the  Supreme  Court  was 
not  in  session, — hence  the  title,  "  Circuit  "  Judge. 

1  [26  Stat,  at  Large,  826,  chap.  517.] 
5 


66       JUKISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

By  the  year  1869,  the  business  of  the  Circuit  Courts  * 
had  increased  so  much  that  Congress  authorized  the 
President  to  appoint  one  Circuit  Judge  for  each 
Circuit,  to  hear  cases  in  the  absence  of  the  Supreme 
Court  Justice,  and  to  sit  with  him  when  he  desired 
such  assistance.  Subsequent  acts  increased  the 
number  of  Circuit  Judges  to  two  in  several  Circuits 
where  the  business  of  the  Court  was  excessive.  It 
was  lawful  also  (and  this  is  still  the  case)  for  any 
District  Judge  to  hold  the  Circuit  Court  in  his  Cir- 
cuit, at  the  request  of  the  Circuit  Judge  ;  so  that 
the  Circuit  Court  might  be  composed  at  any  time  of 
a  Supreme  Court  Justice,  or  of  the  Circuit  Judge,  or 
of  a  District  Judge,  or  of  any  two  of  these. 

The  act  creating  the  new  Circuit  Courts  of  Appeal 
provided  for  the  appointment  of  a  second  Circuit 
Judge  in  each  Circuit ;  and  it  declared  that  the 
court  (one  in  each  Circuit,  be  it  remembered)  should 
be  composed  of  three  Judges,  any  two  of  whom 
should  make  a  quorum.  These  Judges,  any  two 
or  three  of  whom  may  constitute  the  Circuit  Court 
of  Appeals,  are  the  following :  the  Supreme  Court 
Justice  assigned  to  that  Circuit ;  the  Circuit  Judges  ; 
the  District  Judges  in  that  Circuit,  who  may  sit  in 
the  absence  of  the  Circuit  Judges.  The  act  further 
provides  that  no  Justice  or  Judge  shall  sit  in  the 
Circuit  Court  of  Appeals  in  any  case  which  was 
tried  before  him  as  Judge  of  the  Circuit  or  District 
Court  ;i  and  this  provision,  it  will  readily  be  seen, 
makes  necessary,  as  a  rule,  the  presence  of  one  or 
more  District  Judges  on  the   bench  of  the  Circuit 

1  [See  American  Construction  Co.  v.  Jacksonville,  Tampa,  and  Key 
West  Ri/.  Co.,  148  U.  S.  372.] 


APPEALS  FROM  FEDERAL  COURTS.        67 

Court  of  Appeals,  in  cases  appealed  from  the  Circuit 
Court.  Perhaps  the  most  usual  composition  of  the 
Appellate  Court  is  one  Circuit  Judge  and  two  Dis- 
trict Judges.  It  is  quite  conceivable  that  the  court 
should  be  composed  of  three  District  Judges.  The 
.Supreme  Court  Justices  are  usually  engaged  in 
Washington. 

Such  is  the  new  court  created  by  the  Act  of  1891. 
The  statute  begins  by  taking  away  entirely  the  right 
of  appeal  from  the  District  to  the  Circuit  Court.  The 
Circuit  as  well  as  the  District  Court  is  now  purely 
a  court  of  original  jurisdiction.  The  act  then  divides 
all  cases  in  those  courts  into  two  classes :  the  one, 
the  smaller  and  more  important  class,  is  made  appeal- 
able directly  to  the  Supreme  Court ;  the  other  class 
is  made  appealable  to  the  Circuit  Court  of  Appeals, 
and  the  decision  of  that  court  is  final,  except  in  a 
few  cases,  and  except  also,  that  any  new  or  difficult 
question  of  law  arising  in  the  Circuit  Court  of 
Appeals  may  be  certified  to  the  Supreme  Court. 
This  last  provision  enables  the  Supreme  Court  to 
harmonize  those  differences  of  opinion  which  inevi- 
tably occur  between  the  various  Circuit  Courts  of 
Appeal.     I  now  take  up  the  statute  in  detail. 

"  Appeals  or  writs  of  error  may  be  taken  from  the 
District  Courts  or  from  the  existing  Circuit  Courts  di- 
rect to  the  Supreme  Court  in  the  following  cases :  ^ 

"  (a)  In  any  case  in  which  the  jurisdiction  of  the 
Court  2  is  in  issue  ;    in  such  cases  the  question  of 

1  [The  writ  of  error  is  a  matter  of  right.  In  re  Claascn,  140  U.  S. 
200.  But  it  can  be  taken  only  after  final  judgment.  McLish  v.  Rojf, 
141  U.  S.  661,  668.] 

2  [See  In  re  Lennon,  150  U.  S.  393.] 


68        JUEISDICTION,   rKACTICE,   AND    JURISPRUDENCE. 

jurisdiction  alone  shall  be  certified  to  the  Supreme 
Court  from  the  court  below  for  decision. 

"  (5)  From  the  final  sentences  and  decrees  in  prize 
causes. 

"  (^')  In  cases  of  conviction  of  a  capital  or  other- 
wise infamous  crime. ^ 

"  (c?)  In  any  case  that  involves  the  construction  or 
application  of  the  Constitution  of  the  United  States. 

"  (e)  In  any  case  in  which  the  constitutionality 
[not  the  construction]  of  any  law  of  the  United 
States,  or  the  validity  or  construction  of  any  treaty 
made  under  its  authority,  is  drawn  in  question. 

"(/)  In  any  case  in  which  the  constitution  or  law 
of  a  State  is  claimed  to  be  in  contravention  of  the 
Constitution  of  the  United   States." 

It  is  to  be  noticed  in  the  first  place  that  the  act 
provides  for  appeals,  as  well  as  for  writs  of  error  ; 
whereas,  as  we  have  seen,  the  appellate  jurisdiction 
of  the  Supreme  Court  over  the  State  courts  is 
exercised  only  by  writs  of  error.  The  difference  is 
an  important  one,  for  writs  of  error  take  up  merely 
questions  of  law  ;  whereas  an  appeal  carries  up  the 
whole  case,  evidence  and  all.  In  all  equity  and 
admiralty  cases,  therefore,  —  for  these  are  the  cases 

1  [Upon  this  section  Judge  Sawyer  has  remarked,  not  without 
humor,  as  follows :  —  "  Prior  to  the  Act  of  1879,  there  was  no  appeal 
in  criminal  cases,  except  on  certificate  of  opposition  of  opinion,  yet 
the  country  got  along  very  well  for  a  century  under  that  sj'stem. 
Under  the  newly  adopted  system,  since  it  costs  the  convicted  party 
nothing  to  litigate,  the  government  paying  all  the  expenses  on  both 
sides,  and  often  appointing  counsel  for  the  impecunious,  no  convict 
is  likely  to  be  hanged,  or  find  his  way  into  the  penitentiary,  till  he 
gets  to  the  end  of  the  law  at  Washington."  United  Stales  v.  Sutton, 
i7  Fed.  Eep.  129.] 


APPEALS  FROM  FEDERAL  COURTS.        69 

which  go  up  by  appeal,  —  the  Supreme  Court,  if 
it  has  jurisdiction  under  any  one  of  the  foregoing 
clauses,  reviews  decisions  of  the  inferior  Federal 
Courts  upon  matters  of  fact  as  well  as  of  law/ 

It  is  to  be  observed  also  that  the  limitation  men- 
tioned in  clause  (a) does  not  apply  to  the  other  clauses. 
Consequently,  in  all  cases  except  those  of  jurisdic- 
tion, the  Supreme  Court  may  review  not  only  the 
Federal  question  involved,  but  also  any  other  ques- 
tion in  the  cause  which  can  be  brought  before  it  by 
writ  of  error  or  appeal,  as  the  case  may  be.^ 

The  questions  of  jurisdiction  intended  by  this 
clause  (a)  are  of  course  questions  arising  under  the 
statute :  a  question  as  to  whether  the  court  below 
had  legal  or  equitable  jurisdiction  of  a  particular 
matter  does  not  come  within  this  clause.^  A  certi- 
ficate, from  the  court  below,  as  to  the  question  of 
jurisdiction  involved,  has  been  held  by  the  Supreme 
Court  to  be  indispensable.  They  said  :  "  A  certifi- 
cate ...  is  explicitly  and  in  terms  required.  .  .  . 
The  narrowness  of  range  in  the  particular  instance 
can  make  no  difference  in  the  application  of  the 
principle."*  This  rule,  however,  has  been  modified 
by  subsequent  decisions ;  and  "  it  is  sufficient  if 
there  is  a  plain  declaration  that  the  single  matter 
^vhich  is  by  the  record  sent  up  to  this  court  for  de- 
cision is  a  question  of  jurisdiction,  and  the  precise 

1  [See  Dower  v.  Richards,  151  U.  S.  658.] 

2  [See  Chappell  v.  United  States,  160  U.  S.  499.] 

3  [Smith  V.  McKaji,  16  Supr.  Ct.  Rep.  490.] 

*  [Matjnard  v.  Hecht,  151  U.  S.  324.  And  the  certificate  must 
be  granted  at  the  same  term  during  which  the  judgment  or  decree 
complained  of  was  made :   Colvin  v.  Jacksoncilie,  158  U.  S.  456  ] 


70        JUKISDICTION,    PRACTICE,    AND    JURISPRUDENCE. 

question  clearly,  fully,  and  separately  stated.  No 
mere  suggestion  that  the  jurisdiction  of  the  court 
was  in  issue  will  answer.  This  court  will  not  of 
itself  search,  nor  follow  counsel  in  their  search  of 
the  record,  to  ascertain  whether  the  judgment  of  the 
trial  court  did  or  did  not  turn  on  some  question  of 
jurisdiction. "  ^ 

Suppose,  however,  that  you  desire  to  appeal  from 
the  Circuit  or  the  District  Court,  as  the  case  may 
be,  both  on  the  question  of  jurisdiction,  and  also 
on  the  merits  of  the  case ;  and  suppose  further  that 
the  case  is  one  which,  on  its  merits,  is  made  appeal- 
able, not  to  the  Supreme  Court,  but  to  the  Circuit 
Court  of  Appeals.  In  such  a  contingency  can  you 
first  take  your  writ  of  error  to  the  Supreme  Court, 
on  the  question  of  jurisdiction,  and  then,  if  that  be 
decided  against  you,  have  the  case  tried  on  its 
merits  afterward  in  the  lower  court;  or,  supposing 
that  the  case  has  been  decided  against  you  in  the 
lower  court,  can  you  then  take  your  writ  of  error 
to  the  Supreme  Court  on  the  question  of  jurisdic- 
tion, and  your  writ  of  error  (or  appeal)  to  the  Cir- 
cuit Court  of  Appeals  on  the  merits  of  the  case,  so 
as  to  have  an  appeal  pending  at  the  same  time  in 
each  court  ?  The  Supreme  Court  have  answered 
both  of  these  questions  in  the  negative.  They  say: 
"The  writ  of  error  or  the  appeal  may  be  taken  only 
after  final  judgment.  When  that  judgment  is  rendeied, 
the  party  against  whom  it  is  rendered  must  elect 

1  [See  Chappell  v.  United  States,  160  U.  S.  499,  where  the  cases 
are  reviewed.  The  most  receut  case  is  Davis  v.  Geissler,  162  U.  S. 
290.] 


APPEALS   FROM   FEDERAL    COURTS.  71 

whether  he  will  take  his  writ  of  error  or  appeal  to 
the  Supreme  Court  upon  the  question  of  jurisdiction 
alone,  or  to  the  Circuit  Court  of  Appeals  upon  the 
whole  case. "1  And  in  the  latter  event,  the  ques- 
tion of  jurisdiction  may  be  raised  and  decided  in 
the  Circuit  Court  of  Appeals,  along  with  the  other 
questions  involved,  although  the  defendant  might 
have  carried  it  directly  to  the  Supreme  Court. ^ 

In  a  recent  case,^  the  Supreme  Court  sum  up  the 
law  upon  this  subject  as  follows  :  "  (1)  If  the  juris- 
diction of  the  Circuit  Court  is  in  issue  and  decided 
in  favor  of  the  defendant,  as  that  disposes  of  the 
case,  the  plaintiff  should  have  the  question  certified 
.  directly  to  this  court.  (2)  If  the  jurisdiction 
is  sustained,  and  then  judgment  or  decree  is  ren- 
dered in  favor  of  the  defendant  on  the  merits,  the 
plaintiff  .  .  .  must  appeal  to  the  Circuit  Court  of 
Appeals,  where,  if  the  question  of  jurisdiction 
arises,  that  court  may,  in  their  discretion,  certify 
it  to  the  Supreme  Court.  (3)  If  the  jurisdiction  is 
sustained,  and  judgment  on  the  merits  is  rendered 
in  favor  of  the  plaintiff,  then  the  defendant  can 
elect  either  to  have  the  question  of  jurisdiction  cer- 
tified directly  to  this  court,  or  to  carry  the  whole 
case  to  the  Circuit  Court  of  Appeals,  where  the 
question  of  jurisdiction  can  be  decided,  or  whence 
it  can  be  certified  to  the  Supreme  Court.  (4)  If  in 
the  last-mentioned  case,  the  plaintiff  complains  of 
the  judgment  rendered  in  his  favor,  he  may  also 
carry  the  case  on  the  merits  to  the  Circuit  Court  of 

1  \McLish  V.  Roff,  141  U.  S.  661.] 

2  [American  Sugar  Refining  Co.  v.  Johnson,  60  Fed.  Rep.  503.J 
8  [United  States  v.  Jahn,  155  U  S.  109.] 


72        JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

Appeals,  and  this  he  may  do  by  way  of  cross  appeal 
or  writ  of  error,  if  the  defendant  has  taken  the  case 
there  ;  or  independently,  if  the  defendant  has  carried 
the  case  to  the  Supreme  Court  on  the  question  of 
jurisdiction  alone,  and  in  this  instance  the  Circuit 
Court  of  Appeals  will  suspend  a  decision  upon  the 
merits  until  the  question  of  jurisdiction  has  been 
determined.  (5)  The  same  observations  are  appli- 
cable where  a  plaintiff  objects  to  the  jurisdiction, 
and  is,  or  both  parties  are,  dissatisfied  with  the 
judgment  on  the  merits." 

The  clause  {h)  requires  no  comment,  and  as  to 
clause  (c)  it  need  be  said  only  that  an  "  infamous  " 
crime  means  one  punishable  (not  necessarily  pun- 
ished 1)  by  imprisonment  in  a  State  prison  or  peni- 
tentiary, with  or  without  "hard  labor."  A  crime 
punishable  by  fine  only  or  by  imprisonment  in  a 
county  jail  or  house  of  correction  is  not  an  "in- 
famous"   crime.  ^ 

It  must  be  remembered  that  the  jurisdiction 
of  the  Supreme  Court  in  criminal  cases  is  exercised 
only  by  a  writ  of  error,  not  by  appeal,  and  conse- 
quently they  have  authority  to  pass  only  upon 
questions  of  law,  not  upon  questions  of  fact 
raised  in  such  cases. ^ 

As  to  clause  (d)  one  remark  only  need  be  quoted. 
The  Supreme  Court  have  said:  "The  construction 
or  application  of  the  Constitution  of  the  United 
States  must  be  involved  as  controlling,  although 
on  appeal   or  error  all  other  questions  would   be 

1  [Stokes  V.  Uni'ted  States,  CO  Fed.  Rep.  597.] 

2  [Th  re  Mills,  l.'i.'j  IT.  S.  263-,  Jones  v.  liubbins,  8  Gray,  329,  347.] 
8  [In  re  Buchanan,  158  U.  S.  31.] 


APPEALS   FROM   FEDERAL    COURTS.  73 

open  to  determination,  if  inquiry  were  not  rendered 
unnecessary  by  the  ruling  on  that  arising  under  the 
Constitution,"!  and  the  latter  part  of  this  remark, 
as  we  have  seen,  applies  to  all  cases  except  those 
which  involve  a  question  of  jurisdiction  alone. ^ 

As  to  clause  {e)  it  should  be  noticed  that  the 
appeal  lies  only  when  the  constitutionality  of  a  law 
of  the  United  States  is  drawn  in  question ;  it  does 
not  lie  when  the  construction  merely  of  such  a  law 
is  involved. 

Jurisdiction  exists  under  clause  (/),  "If  in  a 
given  suit,  the  ultimate  question  involved  is 
whether  a  State  statute  is  void,  either  because  it 
impairs  rights  that  are  guaranteed  by  the  Federal 
Constitution  or  because  the  legislature  of  a  State 
has  assumed  to  exercise  powers  that  have  been 
surrendered  to  the  general  government. "  "  This 
clause,  it  need  hardly  be  said,  does  not  cover  those 
cases  where  the  statute  of  a  State  is  alleged  to 
violate  the  Constitution  of  that  State. 

One  general  remark  should  be  made  here.  The 
Federal  question  which  gives  to  the  Supreme  Court 
jurisdiction  must  appear  at  the  outset  from  the 
pleadings.  It  is  not  sufficient  that  such  a  question 
arises  in  the  course  of  the  litigation.* 

And  now  as  to  cases  appealable  not  to  the  Su- 
preme Court,  but  to  the  Circuit  Courts  of  Appeal. 
Section  6  of  the  statute  runs  as  follows:  "The 
Circuit  Courts  of  Appeal  established  by  this  Act 

1  [Careii  v.  Houston  S,-  Texas  Central  Ri/.,  150  U.  S.  170,  181.] 

2  [Horner  v.  United  States,  143  U.  S.  570,  577.] 
8  [Hastings  v.  Ames,  68  Fed.  Rep.  726.] 

*  [Bnrgmeyer  v.  Idler,  159  U.  S.  408.] 


74       JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

shall  exercise  appellate  jurisdiction^  to  review  by 
appeal  or  by  writ  of  error  final  decision'^  in  the 
District  Court  and  the  existing  Circuit  Courts  in  all 
cases  other  than  those  provided  for  in  the  preceding 
section  of  this  act  [which  is  the  one,  already  stated, 
dealing  with  the  Supreme  Court],  unless  otherwise 
provided  by  law,  and  the  judgments  or  decrees  of 
the  Circuit  Courts  of  Appeal  shall  be  final  in  all 
cases  in  which  the  jurisdiction  is  dependent  entirely 
upon  the  opposite  parties  to  the  suit  or  controversy 
being  aliens  and  citizens  of  the  United  States  or 
citizens  of  different  States ;  also  in  all  cases  aris- 
ing under  the  patent  laws,  under  the  revenue  laws, 
and  under  the  criminal  laws,  and  in  admiralty  ^ 
cases;  excepting  that  in  every  such  subject  within 
its  appellate  jurisdiction,  the  Circuit  Court  of 
Appeals  at  any  time  may  certify  to  the  Supreme 
Court  of  the  United  States  any  questions  or  proposi- 
tions of  law  concerning  which  it  desires  the  instruc- 
tion of  that  court  for  its  proper  decision.  And 
thereupon  the  Supreme  Court  may  either  give  its 
instruction  on  the  questions  and  propositions  certi- 
fied to  it,  which  shall  be  binding  upon  the  Circuit 
Courts  of  Appeals  [sic]  in  such  cases,  or  it  may 
require  that  the  whole  record  and  cause  may  be 
sent  up  to  it  for  its  consideration,  and  thereupon 
shall  decide  the  whole  matter  in  controversy  in  the 

'  [There  is  no  money  limit  to  the  jurisdiction  of  the  Circuit  Court 
of  Appeals.     Northern  Pacific  Ri/.  Co.  v.  Arnafo,  49  Fed.  Rep.  8S1.] 

2  [As  to  what  is  a  final  decision,  .see  Central  Trust  Co.  of  New  York 
V.  Marietta,  <fc.  7?y.  Co.,  48  Fed.  Rep.  850.] 

^  [In  such  cases,  the  court  may  review  questions  both  of  law  and 
fact.     The  Uavilah,  48  Fed.  Rep.  684.] 


APPEALS   FROM   FEDERAL   COURTS.  7o 

same  manner  as  if  it  had  been  Lrought  there  for 
review  by  writ  of  error  or  appeal. 

"  And  excepting  also  that  in  any  such  case  as  is 
hereinbefore  made  final  in  the  Circuit  Court  of 
Appeals,  it  shall  be  competent  for  the  Supreme 
Court  to  require,  by  certiorari  or  otherwise,  any 
such  case  to  be  certified  to  the  Supreme  Court  for 
its  review  and  determination  with  the  same  power 
and  authority  as  if  it  had  been  carried  by  appeal  or 
writ  of  error  to  the  Supreme  Court. 

"  In  all  cases  not  hereinbefore,  in  this  section, 
made  final,  there  shall  be  of  right  an  appeal  or 
writ  of  error  or  review  of  the  case  by  the  Supreme 
Court  of  the  United  States  where  the  matter  in 
controversy  shall  exceed  one  thousand  dollars  be- 
sides costs.  But  no  such  appeal  shall  be  taken  or 
writ  of  error  sued  out  unless  within  one  year  after 
the  entry  of  the  order,  judgment,  or  decree  sought 
to  be  reviewed. "  The  rest  of  the  statute  deals  with 
appeals  from  injunctions  and  other  matters  of 
practice  which  I  shall  notice  presently. 

The  first  words  to  require  construction  are  these, 
which  occur  near  the  beginning  of  the  section, 
"  unless  otherwise  provided  by  law. "  This  means, 
unless  otherwise  provided  by  the  law  of  this  very 
act,  or  of  some  subsequent  act:  the  words  do  not 
refer  to  laws  existing  prior  to  the  Act  of  1891 ; 
and,  further,  they  have  this  intention,  as  described 
by  the  Supreme  Court :  "  The  words,  '  unless  other- 
wise provided  by  law,'  were  manifestly  inserted  out 
of  abundant  caution  in  order  that  any  qualification 
of  the  jurisdiction  by  contemporaneous  or  subse- 
quent acts  should  not  be  construed   as  taking  it 


76       JURISDICTION,   PKACTICE,   AND   JURISPEUDENCE. 

away,  except  when  expressly  so  provided.  Implied 
repeals  were  intended  to  be  thereby  guarded 
against. "  ^ 

Those  parts  of  the  section  which  relate  to  certi- 
fying questions  to  the  Supreme  Court,  and  to  the 
power  of  the  Supreme  Court  to  order  the  record 
in  certain  cases  to  be  sent  up  to  it  for  review  have 
also  been  construed  by  the  court.  These  two 
clauses  relate  to  the  same  class  of  cases ;  that  is,  to 
cases  made  final  in  the  Circuit  Court  of  Appeals. 
It  is  true  that  the  first  of  these  two  clauses,  the 
one,  that  is,  giving  the  Circuit  Court  of  Appeals 
power  of  its  own  motion  to  certify  up  cases,  begins 
as  follows :  "Excepting  that  in  every  such  subject 
within  its  appellate  jurisdiction,"  which  would  in- 
clude cases  not  made  final  in  that  court.  But  a 
subsequent  clause  provides  that  in  all  cases  not 
made  final  in  the  Circuit  Court  of  Appeals,  there 
shall  be  of  right  an  appeal  to  the  Supreme  Court. 
Consequently  it  must  be  held  that  the  power  of 
certifying  up  questions  of  law  applies  only  to  cases 
made  final  in  the  Circuit  Court  of  Appeals. 

The  Supreme  Court  have  discouraged  the  exercise 
of  this  power,  except  in  cases  of  great  importance. 
The  Act  of  1891  was  passed,  as  we  have  seen,  to 
relieve  the  Supreme  Court;  and  therefore  the 
Supreme  Court  construe  it  strictly.  ^  An  inter- 
esting case  which  states  when  it  is  proper  for 
the  Circuit  Court  of  Appeals  to  certify  questions 
of  law  to  the  Supreme  Court,  for  instruction,  and 

1  [Lau  ()w  Bew,  144  U.  S.  47,  56.] 

2  [A  meriain  Construction  Com/iaiii/  v.  Jacksonville,  Tampa,  Sf  Keif 
West  Railwaj  Co.,  148  U.  S.  372,  382.] 


APPEALS   FROM   FEDERAL   COURTS.  77 

in  what  manner  such  questions  should  be  certified, 
is  Columbus  Watch  Co.  v.  Rohhins^ 

It  will  be  observed  that  although  the  Circuit 
Court  of  Appeals  are  to  certify  only  "  questions  or 
propositions  of  law"  to  the  Supreme  Court,  yet 
that  the  next  paragraph  gives  the  Supreme  Court 
authority  to  require  that  the  whole  record  should 
be  sent  up  to  it  for  review.  It  makes  no  difference, 
therefore,  whether  the  Circuit  Court  of  Appeals  or 
the  Supreme  Court  takes  the  initiative;  in  either 
court,  the  Supreme  Court  may  consider  and  pass 
upon  the  whole  case.  The  two  provisions  give  a 
double  opportunity  to  the  defeated  party  in  the 
Circuit  Court  of  Appeals.  If  he  considers  that 
his  case  involves  questions  of  law  of  such  novelty 
and  importance  that  they  deserve  to  be  passed  upon 
by  the  Supreme  Court,  he  may  petition  the  Circuit 
Court  of  Appeals  to  certify  them  accordingly ;  and 
if  that  court  refuses  so  to  do,  he  may  then  petition 
the  Supreme  Court  to  direct,  by  writ  of  certiorari, 
that  the  record  should  be  sent  up  to  them.  But,  in 
this  case,  still  more,  perhaps,  than  when  the  Cir- 
cuit Court  of  Appeals  take  the  initiative,  the 
Supreme  Court  will  act  only  if  the  circum- 
stances are  extraordinary.  Thus  they  say  that  this 
is  a  branch  of  the  court's  jurisdiction  which  should 
be  exercised  "  only  in  cases  of  peculiar  gravity  and 
general  importance,  or  in  order  to  secure  uniform- 
ity of  decision  [between  the  various  Circuit  Courts 
of  Appeal].  Accordingly,  while  there  have  been 
many  applications  to  this  court  for  writs  of  certiorari 

1  [148  U.  S.  266.     See  also  Cincinnati,  Hamilton,  &'c.  R.  R.  Co.  v. 
McKeen,  149  U.  S.  259 ;  Graver  v.  Faurot,  16  Supr.  Ct.  Rep.  799.] 


78      JURISDICTIOX,    PRACTICE,   AND   JURISPRUDENCE. 

to  the  Circuit  Court  of  Appeals  under  this  pro- 
vision, two  only  have  been  granted,  the  one  in  Lau 
Ow  Bew's  Case  (144  U.  S.  47),  which  involved  a 
grave  question  of  public  international  law,  affect- 
ing the  relations  between  the  United  States  and  a 
foreign  country ;  the  other  in  Fabre,  Petitioner, 
No.  1237  of  the  present  term,  a<n  admiralty  case, 
which  presented  an  important  question  as  to  the 
rules  of  navigation ;  .  .  .  and  in  each  of  those  cases 
the  Circuit  Court  of  Appeals  had  declined  to  certify 
the  question  to  this  court. "  ^ 

This  power  to  bring  up  a  case  by  certiorari  may 
be  exercised  at  any  stage  of  the  case  in  the  court 
below;  the  Supreme  Court  need  not  wait  until  the 
Circuit  Court  of  Appeals  has  made  its  final  d,ecree. 
But,  as  the  Supreme  Court  said  in  the  case  just 
cited:  "Doubtless  this  power  would  seldom  be 
exercised  before  final  judgment  in  the  Circuit 
Court  of  Appeals,  and  very  rarely  indeed  before  the 
case  was  ready  for  decision  upon  the  merits  in  that 
court.  But  the  question  at  what  stage  of  the  pro- 
ceedinos  and  under  what  circumstances  the  case 
should  be  required  by  certiorari  or  otherwise  to  be 
sent  up  for  review  is  left  to  the  discretion  of  this 
court,  as  the  exigencies  of  each  case  may  require." 

The  next  clause  in  the  section  has  also  been  con- 
strued by  the  courts,  and  it  has  given  rise  to  some 
very  close  analysis.  I  repeat  it  here :  "  In  all  cases 
not  hereinbefore  in  this  section  made  final  there 
shall   be  of   right   an  appeal   or  writ  of  error  or 

1  [See  also  American  Construction  Co.  v.  JarJcsonville,  Tampa,  Sr 
Keij  West  Railwaij  Co.,  148  U.  S.  372  ;  Dashiell  v.  Grosvenor,  75  Off- 
Gaz.  507.] 


APPEALS  FROM  FEDERAL  COURTS.      •  79 

review  of  the  case  by  the  Supreme  Court  of  the 
United  States,  where  the  matter  in  controversy 
shall  exceed  one  thousand  dollars  besides  costs." 
And  the  appeal,  etc.,  must  be  taken  within  one 
year.  This  section  has  been  construed  chiefly  in 
reference  to  cases  appealed  from  the  highest  courts 
of  the  territories,  and  consequently  it  is  necessary 
first  to  state  what  laws  govern  such  appeals.  By 
Rev.  Stat.  702,  and  by  the  Act  of  March  3,  1885, 
23  Stat.  443,  c.  355,  final  judgments  and  decrees 
of  the  Supreme  Courts  of  the  territories,  where  the 
matter  in  dispute,  exclusive  of  costs,  exceeds  the 
sum  of  $5000,  may  be  reviewed  in  the  Supreme 
Court,  as  if  they  were  final  judgments  or  decrees  of 
a  Circuit  Court.  The  court  have  held  that  this  pro- 
vision is  still  in  force.  ^  The  present  act,  the  Act 
of  1891,  now  under  consideration,  provides  in  addi- 
tion that  the  Circuit  Courts  of  Appeal  "  in  cases 
in  which  judgments  of  the  Circuit  Courts  of  Appeal 
are  made  final  by  this  act,"  shall  have  the  same 
appellate  jurisdiction  over  the  Supreme  Courts  of 
the  territories  that  they  have  over  the  Circuit  and 
District  Courts. ^  In  Aztec  Mining  Co.  v.  Ripley.,^ 
a  suit  upon  a  contract  involving  $1657  had  been 
decided  by  the  Supreme  Court  of  New  Mexico. 
The  defeated  party  sued  out  a  writ  of  error  to  the 
Circuit  Court  of  Appeals  for  the  8th  Circuit,  which 
was  dismissed  for  want  of  jurisdiction,  and  then 
a  writ  of  error  was  taken  from  the  United  States 
Supreme    Court.      The    Supreme   Court  held    that 

1  [Shiite  V.  Keiiser,  149  U.  S.  649.] 

2  [As  to  the  Indian  Territory,  see  28  Stat.  695.] 
8  [151  U.  S.  79.] 


80        JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

since  this  case  did  not  come  within  any  one  of  the 
cases  enumerated  by  the  Act  of  1891  as  "made 
final  "  in  the  Circuit  Court  of  Appeals,  that  court 
had  no  jurisdiction  over  it ;  the  cases  appealable 
to  that  court  from  the  Territorial  Courts,  under  the 
Act  of  1891,  being,  as  I  have  just  stated,  limited 
to  such  cases  as  are  "  made  final "  in  that  court  by 
the  act. 

The  Supreme  Court,  however,  held  that  inasmuch 
as  the  act  gave  the  Supreme  Court  authority  to 
require  cases  "  made  final  "  to  be  certified  to  it  for 
review,  and,  in  cases  not  made  final,  gave  the 
defeated  party  an  absolute  right  of  appeal,  it  must 
have  been  intended  by  the  statute  that  "jurisdic- 
tion might  be  entertained  by  this  court  to  pass 
upon  the  jurisdiction  of  that  court  [the  Circuit 
Court  of  Appeals]  when  involving  the  question  of 
the  finality  of  its  judgment  under  section  six. "  At 
least,  such  I  understand  to  be  the  reasoning  of  the 
court,  though  I  confess  that  I  do  not  quite  follow 
it.  At  all  events,  the  court  plainly  decided  that  it 
had  jurisdiction  to  pass  upon  the  question  whether 
the  Circuit  Court  of  Appeals  had  jurisdiction  over 
the  case  ;  and  I  presume  that  it  would  have  the  same 
power  in  respect  to  any  question  of  jurisdiction  of 
the  lower  court  which  could  arise  under  the  statute. 

In  another  case,  an  action  of  contract  involving 
less  than  -'?<1000,  a  writ  of  error  was  taken  from 
the  Supreme  Court  of  New  Mexico  to  the  Circuit 
Court  of  Appeals  for  the  8th  Circuit.  It  was 
admitted  that  the  case  did  not  come  within  the 
list  of  cases  "made  final"  in  the  Circuit  Court  of 
Appeals,  and  therefore  that  it  was  not  within  the 


APPEALS   FEOM   FEDEEAL    COURTS.  81 

clause  (the  15th)  which  gives  that  court  the  same 
jurisdiction  of  Territorial  cases  that  it  has  over 
Circuit  and  District  Court  cases.  But  it  was  con- 
tended that  the  Circuit  Court  of  Appeals  had  juris- 
diction of  this  case  by  implication,  under  the 
clause  which  we  are  now  considering;  namely,  "In 
all  cases  not  hereinbefore  in  this  section  made  final 
there  shall  be  of  right  an  appeal  or  writ  of  error  or 
review  of  the  case  by  the  Supreme  Court  of  the 
United  States  where  the  matter  in  controversy  shall 
exceed  -11000  besides  costs."  The  argument  (and 
the  court  considered  it  "plausible  ")  was  as  follows  : 
This  clause  disposes  of  all  cases  not  already  "  made 
final."  As  to  those  of  them  which  involve  more 
than  $1000,  it  says  that  there  shall  be  an  appeal  to 
the  Supreme  Court;  as  to  those  involving  less  than 
$1000,  it  provides  for  no  appeal,  and  therefore  it 
must  be  inferred  that  these  cases  also  are  appeal- 
able to  and  final  in  the  Circuit  Court  of  Appeals, 
since  this  clause  of  the  statute  is  dealing  with  all 
cases  "  not  hereinbefore  in  this  section  made  final. " 
The  present  case  is  such  a  case,  and  therefore  it 
may  be  carried  to  the  Circuit  Court  of  Appeals, 
and  is  final  there. 

But  the  court  held  that  the  purpose  of  this  clause 
was  to  deal  only  with  cases  of  which  the  statute 
had  already  given  the  Circuit  Court  of  Appeals 
jurisdiction;  and  that  it  could  not  be  construed  as 
conferring  any  new  jurisdiction  upon  it.  "This 
proviso,"  they  said,  "limits  the  jurisdiction  of  the 
Supreme  Court,  but  it  does  not  enlarge  that  of  the 
Circuit  Court  of  Appeals. "  ^     The  court  also  pointed 

1  [Badaracco  v.  Cerf,  53  Fed.  Ecp   100  ] 
6 


82      JURISDICTION,    rEACTICE,   AND    JUEISPRUDENCE. 

out  that  to  hold  otherwise  would  be  to  bring  about 
this  absurdity  ;  namely,  that  Territorial  cases  involv- 
ing less  than  1*1000  could  be  taken  by  writ  of  error 
to  the  Circuit  Court  of  Appeals,  whereas  Territorial 
cases  involving  more  than  ilOOO  could  not  be  taken 
there.^ 

It  was  held  in  an  interesting  case  ^  that  a  suit  by 
the  United  States  to  cancel  a  patent  falls  within  this 
clause ,  —  such  a  suit  being  regarded  not  as  one 
"arising under  the  patent  laws,"  but  as  one  in  which 
"the  United  States  are  plaintiffs  or  petitioners."  It 
is  therefore  appealal)le,  under  the  general  clause,  to 
the  Circuit  Court  of  Appeals,  and,  since  it  is  not 
"  made  final "  there,  it  is  appealable  thence  to  the 
Supreme  Court,  under  the  clause  now  in  question. 

The  next  section  of  the  statute,  as  amended  by 
Act  of  February  18,  1895,  28  Stat.  666,  ch.  96,  is 
as  follows:  — 

Sec.  7.  Where  upon  a  hearing  in  equity  in  a  Dis- 
trict Court  or  a  Circuit  Court,  an  injunction  shall 
be  granted,  continued,  refused,  or  dissolved  by  an 
interlocutory  order  or  decree,  or  an  application  to 
dissolve  an  injunction  shall  be  refused  in  a  case  in 
which  an  appeal  from  a  final  decree  may  be  taken 
under  the  provisions  of  this  act  to  the  Circuit  Court 
of  Appeals,  an  appeal  may  be  taken  from  such 
interlocutory  order  or  decree  granting,  continuing, 
refusing,    dissolving,   or   refusing  to    dissolve   an 

1  [One  anomaly  in  regard  to  the  Territorial  Courts  arises  under 
this  Act  of  1891.  In  capital  cases  and  in  cases  of  infamous  crimes 
tliere  is  no  appeal  from  the  Territorial  Courts,  but  in  cases  of  minor 
crimes  there  is  an  appeal  to  the  Circuit  Court  of  Appeals.  See  Fol- 
som  V.  United  St.ates,  160  U.  S.  121.] 

2  [Ujiited  States  v.  American  Bell  Telephone  Co.,  159  U.  S.  548.] 


APPEALS  FROM  FEDERAL  COURTS.        83 

injunction,  to  the  Circuit  Court  of  Appeals:  Pro- 
vided, that  the  appeal  must  be  taken  within  thirty- 
days  from  the  entry  of  such  order  or  decree,  and  it 
shall  take  precedence  in  the  Appellate  Court;  and 
the  proceedings  in  other  respects  in  the  court  below 
shall  not  be  stayed  nnless  otherwise  ordered  by  that 
court  during  the  pendency  of  such  appeal :  And 
provided  further,  that  the  court  below  may  in  its 
discretion  require  as  a  condition  of  the  appeal,  an 
additional  injunction  bond.  "^ 

The  sentence  "and  the  proceedings  in  other 
respects  in  the  court  below  shall  not  be  stayed," 
etc.,  might  be  taken  to  imply  that  as  to  the  injunc- 
tion itself  the  proceedings  should  be  stayed ;  that 
is,  that  pending  a  hearing,  the  injunction  should 
be  held  in  abeyance,  and  that  a  supersedeas,  having 
this  effect,  should  issue  as  a  matter  of  course.  But 
the  Supreme  Court  have  decided  otherwise.  They 
hold  that  the  injunction,  though  appealed  from, 
may  continue  in  force  till  the  Circuit  Court  of 
Appeals  disposes  of  the  appeal ;  and  that  a  writ  of 
mandamus  from  the  Supreme  Court  to  compel  the 
issue  of  a  supersedeas  by  the  court  below  will  not 
lie.  That  court,  the  Supreme  Court  hold,  has  an 
absolute  discretion  in  the  matter. ^ 

Two  other  questions,  one  of  them  a  question  of 
much  difficulty,  have  arisen  under  this  clause. 
First,  what   is  meant  by  "  interlocutory  "  decree  ? 

1  [The  statute,  as  originally  passed,  did  not  include  orders  or 
decrees  "refusing"  or  "  dissolving"  an  injunction.] 

2  [In  re  Haberman  Mfg.  Co.,  Petitioner,  147  U.  S.  525,  overruling 
Soci€t€  Anonyme  du  Filtre  Chamherland  Systeme  Pasteur  v.  Blount, 
51  Fed.  Rep.  610.] 


84       JURISDICTION,    PRACTICE,    AND    JUPJSPEUDENCE. 

Does  it  mean  a  decree  for  a  preliminary  injunction 
only,  or  does  it  mean  any  decree  short  of  a  final 
decree  ?  A  preliminary  injunction  is  granted,  as 
the  name  imports,  before  the  case  is  heard  upon 
the  merits,  its  purpose  being  to  keep  things  in  statu 
quo  until  the  case  can  be  heard  and  decided.  Orders 
for  preliminary  injunctions  are  frequently  granted 
by  Circuit  Courts  in  suits  upon  patents,  when  the 
patent  has  been  adjudged  valid  in  another  case,  or 
when  there  has  been  a  long  public  acciuiescence  in 
its  validity.  The  plaintiff  presents  his  case  by 
affidavits,  and  the  defendant  is  allowed  to  file  affi- 
davits in  reply.  If  the  defendant's  affidavits  are  by 
way  of  traverse,  no  further  affidavits  can  be  filed ; 
but  if  they  are  by  way  of  confession  and  avoidance, 
the  plaintiff  may  file  affidavits  in  rebuttal  Upon 
this  evidence  the  preliminary  injunction  is  granted 
or  refused.  The  case  then  goes  on,  testimony  is 
taken,  a  final  hearing  is  had,  and  the  court  makes 
a  decree,  sustaining,  we  will  assume,  the  validity 
of  the  patent,  finding  that  the  defendant  has 
infringed,  and  sending  the  case  to  a  master  to 
take  an  account  of  profits  and  to  assess  damages. 
Is  such  a  decree  an  "  interlocutory  "  decree,  or  does 
"interlocutory"  mean  a  decree  for  a  preliminary 
injunction  ?  It  has  been  decided  that  such  a  decree 
is  an  interlocutory  decree,  and  therefore,  that  an 
appeal  from  it  can  be  taken  under  the  clause  just 
quoted,  as  well  as  from  an  order  or  decree  for  a 
preliminary  injunction. 

The  importance  of  the  point  will  readily  be 
perceived.  Under  the  old  law,  —  the  law  as  it 
stood  prior  to  1801,  — there  was  no  appeal  to  the 


APPEALS  FROM  FEDERAL  COURTS.        85 

Supreme  Court  from  the  Circuit  Court,  except  from 
final  decrees ;  and  a  final  decree  for  the  plaintiff  is 
not  made  until  damages  are  assessed.  Conse- 
quently, prior  to  1891,  damages  had  to  be  assessed 
before  an  appeal  could  be  taken,  and  yet,  if  the 
Supreme  Court  should  reverse  the  decree,  there 
would  be,  of  course,  no  damages,  and  the  time  and 
money  spent  in  taking  them  would  have  been 
thrown  away.  An  accounting  is  often,  especially 
in  patent  suits,  a  protracted  and  costly  proceeding. 
In  one  case,  a  decree  in  favor  of  the  patent  was 
rendered  in  May,  1879.  A  long  contest  in  the 
master's  office  then  began,  and  lasted  till  June, 
1886,  when  damages  to  the  amount  of  more  than 
i^lSOjOOO  were  awarded  by  the  Circuit  Court.  The 
case  was  then  appealed  to  the  Supreme  Court,  and 
in  May,  1891,  that  court  reversed  the  decree  of  the 
Circuit  Court,  and  ordered  that  the  bill  should  be 
dismissed.  The  reports  contain  many  similar  cases 
where  defendants  were  restrained  for  years  from 
using  an  invention  which,  as  the  Supreme  Court 
finally  decided,  they  had  a  right  to  use,  and  where 
they  were  also  subjected  to  great  expense  in  the 
matter  of  damages,  which,  as  the  Supreme  Court 
finally  decided,  the  plaintiff's  had  no  right  to  recover. 
The  clause  in  question  was  designed  to  remedy  this 
injustice. 

But,  as  I  have  indicated,  another  point  has  arisen 
under  this  clause.  When  an  appeal  from  an  inter- 
locutory decree  has  been  taken  to  the  Circuit  Court 
of  Appeals,  what  shall  be  the  form  of  the  decree  made 
by  that  court  ?  The  decree  of  the  court  below  was 
simply  a  decree   for  a   perpetual    injunction,   and 


80       JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

to  assess  damages  (not  a  decree  for  ascertained 
damages),  or  a  decree  dismissing  the  bill.  If  the 
Circuit  Court  of  Appeals  find  for  the  defendant,  no 
difficulty  arises ;  they  affirm  the  decree  dismissing 
the  bill.  But  if  they  find  for  the  plaintiff  below  must 
they  merely  affirm  or  reverse  the  decree  of  the  court 
below,  or,  inasmuch  as  they  have  heard  the  whole 
case,  can  they  go  further,  and  direct  the  Circuit 
Court  to  assess  damages  and  to  enter  a  final  decree 
for  the  plaintiff  ?  If  they  cannot  do  so,  then  the 
Circuit  Court  must  make  a  final  decree  of  its  own 
motion,  and  an  appeal  would  lie  from  that  again  to 
the  Circuit  Court  of  Appeals.  The  question  has  been 
decided  in  both  ways.  In  the  fifth  circuit  {Jones 
Co.  V.  Mmiger  ^)  the  court  held  that  they  had 
authority  only  to  deal  with  the  decree  of  the  court 
below  for  an  injunction.  The  opposite  view  was 
taken,  after  great  consideration,  in  the  first  cir- 
cuit in  Rielimond  v.  Atwood.'^  In  view  of  these 
conflicting  decisions  an  attemjit  was  made  in  the 
6tli  Circuit  to  certify  the  question  to  the  Supreme 
Court  for  its  decision,  but  this  attempt  failed, 
by  reason  of  some  informality,  as  the  Supreme 
Court  held,   in  the  application  to  them.^ 

The  remaining  sections  of  the  Act  of  1891  deal 
chiefly  with  matters  of  practice.  The  15th  section, 
relating  to  appeals  from  the  Supreme  Courts  of  the 
Territories,    has  already  been  stated.     Section   10 

1  [50  Fed.  Rep.  785.  See  also  Columbus  Walch  Co.  v.  Bobbins,  64 
Fed.  Eep.  .384.] 

2  [52  Fed.  TJep.  10.  See  also  Marden  v.  Campbell  Printing  Press 
^-  Mfrj.  Co.,  67  Fed.  Rep.  809 ;  Busill  Carpet  Sweeper  Co.  v.  Goshen 
Sweejier  Co.,  72  Fed.  lie]).  545.) 

8  [Columbus  Watch  Co.  v.  Robhlns,  148  U.  S.  266.] 


APPEALS  FROM  FEDERAL  COURTS.        87 

provides  that  every  case  coming  b}'  writ  of  error  or 
appeal  to  the  Supreme  Court  shall,  after  its  deter- 
mination in  that  court,  be  remanded  to  the  Circuit 
or  District  Court  in  which  the  case  arose,  for 
further  proceedings,  whether  it  comes  directly  to 
the  Supreme  Court,  or  through  the  Circuit  Court  of 
Appeals.  And  all  cases  made  final  in  the  Circuit 
Court  of  Appeals  are,  in  like  manner,  remanded  for 
final  decree  to  the  Circuit  or  District  Courts  where 
they  arose.  In  no  case  does  the  Supreme  Court 
or  the  Circuit  Court  of  Appeals  have  power  to  enter 
a  final  decree. 

Sect.  11  provides  that  all  appeals  and  writs  of 
error  shall  be  taken  or  sued  out  within  six  months 
"  after  the  entry  of  the  order,  judgment,  or  decree 
sought  to  be  reviewed  "  :  Provided,   hotvever,   "  that 
in  all  cases  in  which  a  lesser  time  is  now  by  law 
limited  for  appeals  or  writs  of  error,  such  limits  of 
time  shall   apply  to  appeals  or  writs  of  error,   in 
such  cases  taken  to  or  sued  out  from  the  Circuit 
Courts  of  Appeal."     Since  this  clause  applies  only 
to  the  Circuit  Court  of  Appeals,   it  must  be  held 
that  appeals  or  writs  of  error  to  the  Supreme  Court 
from  the  Circuit  or  District  Courts  may  be  taken, 
as  before  the  Act  of  1891,  within  two  years  after 
the  judgment  or  decree  complained  of  was  rendered, 
except  in  special  cases  of  disability  mentioned  in 
the  statute.^     The   remainder  of   the   section   pro- 
vides that  all  laws  in  force  as  to  the  regulation  of 
appeals  and  writs    of  error   in   the  United  States 
Courts  shall  apply  also  to  the  new  court. 

1  [See  Kev.  Stat.  §  1008.     See  also  McDonald  v.  Hovej,  110  U.  S. 
619  ;  Smith  V.  Gale,  137  U.  S.  577.] 


88     juiasDicTiox,  practice,  and  jurisprudence. 

Sect.  12  provides  that  the  Judges  of  the  court 
shall  have  the  same  power  to  issue  writs  which  is 
granted  in  Revised  Statutes,  sect.  716.^ 

Sect.  13  provides  for  appeals  from  the  Indian 
Territory. 

Sect.  14  repeals  Revised  Statutes,  sect.  691,  and 
the  Act  of  February  16,   1875.2 

The  next  inquiry  is,  as  to  the  amount  in  con- 
troversy. There  is  no  money  limit  to  the  juris- 
diction of  the  Supreme  Court,  except  in  certain 
Territorial  cases,  and  except  also  in  that  small 
class  of  suits  arising  under  the  following  clause  of 
the  statute :  "  In  all  cases  not  hereinbefore  in  this 
section  made  final,  there  shall  be  of  right  an  ap- 
peal or  writ  of  error  or  review  of  the  case  by  the 
Supreme  Court  of  the  United  States  where  the  mat- 
ter in  controversy  shall  exceed  one  thousand  dollars 
besides  costs."  Cases  arising  under  this  clause 
are,  of  course,  few  in  number;  but,  as  we  shall  see 
in  the  next  chapter,  there  is  a  money  limit,  in  most 
cases,  to  the  jurisdiction  of  the  Circuit  Court,  and 
the  following  observations  of  Judge  Curtis  apply  in 
part  to  that  court  as  well  as  to  the  Supreme  Court.] 

Plow  are  you  to  ascertain  whether  the  matter  in 
controversy  exceeds  [one]  thousand  dollars  besides 
costs  ?  The  rules  upon  this  subject  are  well  settled. 

In  the  first  place,  the  matter  in  dispute  must  be 
money,  or  some  right  the  value  of  which  can  be 
calculated  in  money ;  because  this  sum,  [one]  thou- 
sand dollars,  is  the  measure  and  standard  furnished 

1  [As  to  writs  of  prohibition,  see  United  States,  Ex  rel.  Fisher  v. 
Williams,  67  Fed.  Rep.  384.] 

2  [18  Stat.  316.] 


APPEALS  FROM  FEDERAL  COURTS.        89 

by  Congress  to  determine  whether  the  right  of 
appeal  or  writ  of  error  exists;  therefore,  it  must 
be  money,  or  some  right  the  value  of  which  can  be 
calculated  in  money.  You  will  find  this  settled  in 
the  case  of  Ritchie  v.  Mauro,  2  Peters,  243.  That 
was  a  writ  of  error  taken  to  try  the  right  of  a 
person  who  claimed  to  be  the  guardian  of  a  minor 
child,  and  the  court  held  that,  inasmuch  as  this 
right  was  not  capable  of  being  appreciated,  or 
reduced  to  appreciation  in  dollars  and  cents,  there 
could  be  no  writ  of  error.  Another  case  was  that 
of  Barry  v.  Mercein,  5  Howard,  103,  where  a  father 
claimed  the  custody  of  a  child,  and  the  same 
decision  was  made,  —  that  the  value  to  the  father 
of  the  custody  of  his  child  was  not  capable  of  being 
measured  in  money,  and  therefore  the  right  to  an 
appeal  or  writ  of  error  did  not  exist. 

In  ascertaining  whether  the  matter  in  dispute 
exceeds  the  sum  of  [one]  thousand  dollars,  exclusive 
of  costs,  where  money  is  demanded  in  the  declara- 
tion, either  as  debt  or  damage,  — that  is,  where  an 
action  of  debt,  under  the  old  forms  of  pleading,  is 
brought,  and  a  particular  sum  is  demanded ;  or 
where  an  action  of  assumpsit  is  brought,  and  dam- 
ages are  demanded,  —  you  are  to  ascertain,  in  this 
class  of  cases,  from  an  inspection  of  the  record 
alone,  whether  the  matter  in  dispute  exceeds  [one] 
thousand  dollars,  exclusive  of  costs.  Here  there 
are  certain  rules  adjudicated,  to  which  I  wish  to 
ask  your  attention.  One  of  these  rules  is  found  in 
the  case  of  Kanouse  v.  Martin^  15  Howard,  208, 
and  it  is  this :  "The  settled  rule  is,  that  until  some 
further  judicial  proceedings  have  taken  place,  show- 


90       JUEISDICTION,   PRACTICE,   AND   JUEISPRUDENCE. 

ing  upon  the  record  that  the  sum  demanded  in  the 
declaration  is  not  the  matter  in  disjiute,  that  sum 
is  the  matter  in  dispute;" —  so  that,  if  a  plaintiff 
files  a  declaration  in  which  he  demands  more  than 
[one]  thousand  dollars,  that  is  the  matter  in  dispute 
until  some  further  judicial  proceedings  have  taken 
place  showing  that  less  than  that  sum  is  in  dispute. 
This  implies,  what  is  certainly  true,  that,  before 
the  final  judgment  in  the  Circuit  Court  (and  it  is 
only  from  a  final  judgment  that  a  writ  of  error  or 
an  appeal  can  be  taken),  proceedings  may  take 
place  which  show  that  the  sum  demanded  in  the 
declaration  is  not  the  matter  in  dispute.  You  will 
readily  perceive  how  this  may  occur.  Suppose  that 
in  the  declaration  the  sum  of  [one]  thousand  dollars 
is  demanded ;  the  proceedings  go  on  to  a  verdict, 
and  the  sum  of  [five  hundred]  dollars'  damages  is 
found  by  a  jury.  Then,  so  far  as  the  defendant  is 
concerned,  that  is  the  only  matter  in  dispute.  The 
question  is,  whether  he  must  pay  that  [five  hundred] 
dollars  which  the  jury  have  found,  or  whether  thei*e 
has  been  some  error  in  the  proceedings  which 
should  relieve  him  from  his  payment.  Now,  he 
cannot  carry  that  question  to  the  Supreme  Court  of 
the  United  States,  because,  although  the  sum  of 
[one]  thousand  dollars  was  oi'iginally  demanded 
against  him,  after  the  verdict  it  appears  that  only 
[five  hundred]  dollars  is  the  measure  of  what  he  can 
be  required  to  pay;  therefore  he  cannot  have  a  writ 
of  error.  But,  on  the  other  hand,  the  plaintiff 
demanded  [one]  thousand  dollars.  If,  in  the  course 
of  the  trial,  he  has  taken  proper  exceptions  to 
rulings   of  the  court  reducing  his   claim,   then  he 


APPEALS  FROM  FEDERAL  COURTS.       91 

may  have  these  questions  re-examined  by  a  writ  of 
error,  because  his  claim  was  [one]  thousand  dollars, 
and  that  claim  has  been  affected  and  reduced  by 
the  rulings  of  the  court,  contrary  to  what  he  main- 
tained, and  therefore  he  may  have  a  writ  of  error 
under  these  circumstances,  although  the  defendant 
cannot. 

I  believe  this  will  give  you  an  idea  of  how  the 
question  is  to  be  tested,  and  decided,  in  regard  to 
the  amount  in  controversy  being  more  than  [one] 
thousand  dollars,  exclusive  of  costs,  where  it  is  a 
money  demand.  ^ 

But  you  will  readily  see  that  a  great  many  cases 
come  to  judgment  in  the  Circuit  Courts  which  are 
not  money  demands.  There  are  cases  in  rem.  An 
action  is  brought  to  recover  a  piece  of  laud,  or  to 


1  In  a  very  recent  case,  where  the  defendant  had  pleaded  neither 
a  set-off  nor  a  counter  chxim,  the  plaintiff  remitted  so  much  of  a 
verdict  in  his  favor  as  was  in  excess  of  $5,000,  and  took  judgment 
for  the  remainder  "  in  coin,"  and  the  defendant  sued  out  a  writ  of 
error,  it  was  held  that  tlie  amount  in  controversy,  whether  payable 
in  coin  or  any  other  kind  of  money,  was  not  sufficient  to  give  tlie 
Supreme  Court  jurisdiction.  Thompson  v.  Butler,  95  U.  S.  694.  Other 
cases  on  this  subject  are  Milner  v.  Meek,  95  U.  S.  252  ;  Telegraph  Com- 
pany V.  Ror/ers,  93  U.  S.  565 ;  Schacker  v.  Hartford  Fire  Ins,  Co.,  93 
U.  S.  241  ;  Yznaga  v.  Harrison,  93  U.  S.  233  ;  Terry  v.  Hatch,  93  U.  S. 
44;  The  Rio  Grande,  19  Wallace,  178, — prima  farie,  the  judgment 
against  a  defendant  in  an  action  for  money  is  the  measure  of  the 
jurisdiction  of  tlie  Supreme  Court  in  his  behalf.  This  /iriiua  fiicie 
case  continues  until  the  contrary  is  shown ;  and  if  jurisdiction  is 
invoked,  because  of  the  collateral  effect  a  judgment  may  have  in 
auotlier  action,  it  must  appear  that  the  judgment  conclusively  settles 
the  rights  of  the  parties  in  a  matter  actually  in  dispute,  the  sum  or 
value  of  which  exceeds  the  required  amount.  Troy  v.  Evans,  97 
U.  S.  1.  [A  counter-claim  made  by  the  defendant  is  reckoned  as  a 
part  of  the  sum  involved.     Buckstajfv.  Russell,  151  U.  S.  626.] 


92       JUEISDICTION,    PEACTICE,   AND    JURISPRUDENCE. 

recover  possession  of  a  vessel.  There  are  a  great 
variety  of  cases  where  the  proceedings  are  in  rem, 
and  there  is  no  opportunity  to  show  upon  the  record 
the  precise  amount  of  damages  or  debt  demanded, 
or  to  state  the  value  of  the  property  in  question, 
and  where,  therefore,  there  must  be  a  different  rule 
applied.^ 

If  the  nature  of  the  proceeding  in  equity  or 
admiralty  depends  upon  a  statement  of  the  value  of 
the  thing  demanded  on  the  record,  that  mode  may 
be  resorted  to.  It  is  not  usual  to  resort  to  it,  — 
perhaps  I  may  say  it  is  unusual,  —  but  it  may  be 
resorted  to.  An  allegation  in  such  a  case,  as,  for 
instance,  in  a  real  action,  that  the  land  demanded 
was  of  greater  value  than  [one]  thousand  dollars, 
would  be  an  appropriate  allegation,  for  the  purpose 
of  laying  the  foundation  for  an  appeal.  It  is  not  a 
necessary  foundation;  the  Supreme  Court,  if  the 
amount  in  controversy  is  questioned,  will  receive 
affidavits  in  that  court  of  what  the  value  is,  pro- 
vided they  are  seasonably  made.  They  will  not 
allow  a  party  to  come  there  with  an  appeal  or  a 
writ  of  error,  and  suffer  his  case  to  remain  for  one 
term    after  another  (and   unfortunately   the    cases 

1  Where  a  respondent  in  an  admiralty  suit  elected  to  reduce  the 
amount  of  a  decree  to  a  sum  below  $2,000,  by  claiming  the  benefit 
of  a  set-off,  and  aC  the  same  time  stated  in  writing  that  he  did  it 
without  waiving  his  right  of  ayipeal,  it  was  held  that,  as  the  final 
decree  was  for  a  less  sum  than  $2,000,  there  could  be  no  appeal. 
Sampson  v.  Welsh,  24  Howard,  207.  Altliough  in  cases  in  admiralty 
sounding  in  damages,  as  for  personal  wrongs,  the  damages  claimed 
in  the  libel  may  be  much  larger  than  the  jurisdictional  sum,  the 
right  of  appeal  must  be  determined  by  the  amount  found  in  the  final 
decree.     The  D.  R.  Martin,  91  U.  S.  365. 


APPEALS   FEOM   FEDEEAL    COURTS.  93 

have  to  remain  there  one  term  after  another,  because 
the  docket  is  so  crowded),  and  then  at  last  come  in 
with  affidavits  at  the  end,  perhaps,  of  one,  two,  or 
three  years.  The  affidavits  must  be  seasonably 
made.  You  will  find  this  rule  laid  down  in  the 
case  of  Richmond  v.  The  City  of  3Iilwaukie,  21 
Howard,   391. 

You  must  bear  in  mind  that  neither  cost  nor 
interest  can  be  included  in  this  amount  of  [one] 
thousand  dollars.  The  sum  demanded,  at  the  time 
when  it  was  demanded,  must  be  upwards  of  [one] 
thousand  dollars,  and  an  increase  of  it  afterwards, 
during  the  pendency  of  the  litigation,  l)y  accruing 
interest  or  an  increase  of  the  amount  for  which 
judgment  is  rendered  by  reason  of  costs,  will  not 
raise  the  sum  demanded  above  [one]  thousand  dol- 
lars. This  was  settled  in  the  case  of  Walker  v 
The  United  States,    4  Wallace,    163, 

Another  requirement  is,  that  the  judgment  or 
decree  must  be  final.  "From  all  final  judgments 
and  decrees,"  and  from  no  others,  can  appeals  or 
writs  of  error  be  taken.  Now,  in  reference  to  judg- 
ments at  law,  there  is  no  real  difficulty  in  ascer- 
taining whether  they  are  final.  When  a  judgment 
at  law  is  rendered  on  which  an  execution  can  issue, 
that  is  final;  when  the  execution  is  put  in  force, 
that  may  deprive  the  party  of  his  money.  A  judg- 
ment, therefore,  on  which  an  execution  can  issue 
at  law,  is  a  final  judgment,  and  nothing  short  of  it 
is  so.  ^  Notwithstanding  this,  which  is  now  plain 
enough,  there  have  been  a  great  number  of  decisions 

^  [A  judgment  overruling  a  demurrer  is  not  a  final  judgment. 
Werner  y.  Charleston,  151  U.  S.  360] 


94        JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

upon  this  subject,  because  practitioners  have  not 
perceived  clearly  the  nature  and  extent  of  this 
requirement.  I  will  refer  you  to  a  few  of  them, 
and  you  will  see  to  what  a  recent  time  they  come 
down.  A  refusal  to  grant  a  continuance  of  the 
cause,  a  refusal  to  grant  an  amendment  of  a  decla- 
ration, or  a  new  trial,  are  not  final  judgments.  If 
you  will  refer  to  the  case  of  Boijle  v.  Zacharie,  6 
Peters,  635,  and  also  to  the  case  of  Henderson  v. 
Moore,  5  Cranch,  11,  you  will  see  instances  of  this 
kind.  Also,  a  refusal  to  quash  an  indictment  in  a 
criminal  case  is  not  the  subject  of  a  writ  of  error.  ^ 
The  United  States  v.  Avery,  13  Wallace,  251. 
These  cases  all  depend  upon  the  same  principle. 
An  application  for  a  continuance,  or  to  amend  a 
declaration,  or  quash  an  indictment,  is  an  applica- 
tion to  the  discretion  of  the  court;  and  a  writ  of 
error  cannot  bring  before  the  Supreme  Court  of 
the  United  States  any  question  of  discretion,  —  it 
only  brings  up  questions  of  law.  And  the  same 
thing  is  true,  in  a  larger  sense,  of  an  application  for 
a  new  trial;  for  although  the  granting  or  refusal  to 
grant  a  new  trial  depends  ordinarily  upon  the 
application  of  principles  of  law  to  the  facts  brought 
before  the  court,  according  to  the  practice  of  the 
court,  in  one  mode  or  another,  still  it  is  a  discre- 
tionary authority.     It    is  so   recognized,    and   the 

1  [When  a  writ  of  error  or  appeal  has  been  taken  from  an  inferior 
court  to  the  highest  court  of  a  State,  and  the  latter  court  remands 
the  case  for  a  new  trial,  that  is  not  a  final  judgment  or  decree. 
/'f!?Yv/s  V.  Jo//?jso«,  20  Wall.  653  ;  Unioii  Mutual  Life  Insurance  Co. 
V.  Kirchoff,  100  U.  S.  374.  But  a  refusal  of  the  highest  court  of  a 
State  to  gra7it  a  writ  of  error  to  an  inferior  court  may  be  a  final 
judgment.     Clark  v.  Pennsylvania,  128  U.  S.  395.] 


APPEALS   FROM   FEDERAL   COURTS.  95 

court  will  sometimes,  even  where  the  strict  prin- 
ciples of  law  would  dictate  a  new  trial,  refuse  it, 
because  justice  has  already  been  done,  and  therefore 
in  none  of  these  cases  can  a  writ  of  error  be  taken.' 
Passing  from  the  subject  of  final  judgments  at 
law,  about  which  there  would  seem  to  be  very  little 
difficulty,  the  same  remark,  1  think,  may  be  made 
with  reference  to  the  admiralty,  because  decrees  in 
admiralty  are  simple.  They  ascertain  the  fact, 
and  give  effect  to  it,  that  a  party  is  entitled  to  a 
sum  of  money,  or  that  he  is  entitled  to  the  posses- 
sion of  a  vessel,  or  some  other  thing  which  is  quite 
determinate,  and  which  is  final  in  its  character; 
therefore  very  few  disputes  have  arisen  concerning 
the  finality  of  decrees  in  admiralty  as  the  founda- 
tion of  appeals.  I  might  mention,  however,  that  it 
is  just  as  true  in  admiralty  as  it  is  at  the  common 
law,  that  there  must  be  a  decree  upon  which  some 
execution  can  issue,  before  it  is  final.  For  instance, 
a  hearing  is  had  in  admiralty  in  a  collision  case, 
where  damages  are  demanded  because  one  vessel 
has  negligently  injured  another.  The  court  examine 
the  evidence,  apply  the  principles  of  law  to  the 
facts  which  they  find,  and  they  decide  in  favor  of 
the  libellant,  — that  the  vessel  of  the  libellant  was 
injured  by  the  negligence  of  the  vessel  of  the  claim- 
ant. That  might  seem  at  first  view  to  be  final 
enouo;h.  It  is  ascertained  that  the  claimant  must 
pay  damages,  but  that  is  not  final  in  the  sense  of 

^  See  further,  as  to  fiual  judgments,  Moore  v.  Rohhins,  18  Wallace, 
588;  St.  Clair  County  v.  Lovingston,  lb.  628;  McComh  v.  Commis- 
sioners of  Knox  Count!/,  91  U.  S.  1 ;  Baker -v.  White,  92  U.  S.  176; 
Davis  V.  Crouch,  94  U.  S.  514. 


96        JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

this  law.  There  must  be  reference  to  an  assessor, 
as  he  is  commonly  called  in  admiralty,  to  ascertain 
the  damages,  and  when  those  damages  are  ascer- 
tained, then  another  decree  is  entered,  that  the 
claimant  shall  pay  them,  and  until  that  decree  is 
entered  the  judgment  is  not  final.  As  1  have  said, 
very  few  disputes  have  arisen  on  this  subject.  1  do 
not,  at  this  moment,  remember  any  case  in  which 
there  has  been  difficulty  in  regard  to  the  finality  of  a 
decree  in  admiralty;  but  it  is  very  much  otherwise 
with  decrees  in  equity,  because  a  court  of  equity 
is  capable  of  moulding  its  decrees  into  so  many 
forms,  and  applying  them  to  so  many  different 
states  of  fact,  according  to  the  equity  of  the  par- 
ticular case ;  and  great  numbers  of  cases  have  been 
decided  upon  the  question  whether  a  decree  in 
equity  was  sufficiently  final  to  allow  an  appeal.  I 
can  state  to  you  certain  principles  which  I  believe 
will  be  sufficient  for  your  guidance  upon  this  sub- 
ject, and  will  refer  you  to  some  of  the  decisions. 

In  the  first  place,  a  decree  in  equity  may  be  final 
without  being  complete.  If  it  deprives  the  defend- 
ant of  his  property,  or  his  money,  finally,  so  far  as 
regards  that  coui-t,  then  he  ma}'-  appeal,  although 
there  remain  certain  things  to  be  done  in  the  case 
before  it  will  be  ended  ;^  but,  on  the  other  hand,  if 
the  decree  in  equity  only  changes  the  possession  of 

^  ["  It  may  be  said  in  general  that  if  the  court  make  a  decree  fixing 
the  rights  and  liabilities  of  the  parties,  and  thereupon  refer  the  case 
to  a  master  for  a  ministerial  purpose  only,  and  no  further  proceed- 
ings in  court  are  contemplated,  the  decree  is  final ;  but  if  it  refer  the 
case  to  him  as  a  subordinate  court  and  for  a  judicial  purpose,  as  to 
state  an  account  between  the  parties  upon  which  a  furtlier  decree  ia 
to  be  entered,  the  decree  is  not  final."  McGourkei/  v.  Toledo  (J-  Ohio 
Rj.,  146  U.  S.  536.] 


APPEALS    FROM   FEDERAL   COURTS.  97 

the  property  or  money  temporarily,  then  it  is  not 
final.  Let  me  state  a  case  which  will  illustrate 
each  of  these  principles.  The  decree  may  be  final 
without  being  complete ;  as,  for  instance,  suppose 
a  court  of  equity  should  require  the  defendant  in  a 
case  to  hand  over  the  title  deeds,  or  any  other 
property,  for  which  the  suit  was  brought,  because 
the  complainant  is  entitled  to  them,  or  because  it 
adjudicates  that  he  has  a  right  to  them;  and  it 
requires  the  respondent  in  equity  to  execute  or  give 
eft'ect  to  that  right,  and  pass  the  property  over  to 
his  opponent,  —  that  is  a  final  decree,  although 
there  may  remain  many  things  to  be  done  in  the 
cause.  On  the  other  hand,  suppose  a  court  of 
equity,  finding  some  property  unsafe  in  the  hands 
of  the  holder,  should  make  an  order  that  he  should 
hand  it  over  to  a  receiver ;  or,  if  it  were  moneys 
or  papers,  that  he  should  deposit  them  in  the  court 
with  the  clerk  or  registrar;  —  that  is  not  final, 
because  he  has  not  been  deprived  of  his  property 
finally  by  a  decree  of  the  court,  in  the  execution  of 
principles  which  the  court  considers  applicable  to 
the  case,  but  the  court  has  interposed  and  changed 
the  possession  of  the  property  simply  to  preserve  it 
for  whom  it  may  ultimately  concern,  and  therefore 
that  would  not  be  a  final  decree.  If  you  will  refer 
to  the  cases  of  Forgay  v.  Conrad.,  6  Howard,  201 ; 
Thompson  v.  Dean^  7  "Wallace,  342 ;  and  Stovall  v. 
BankSy  10  Wallace,  583,  you  will  find  these  prin- 
ciples stated  and  explained.  ^ 

1  A  fiual  decree  of  a  Circuit  Court  confirming  a  sale  made  under 
its  order  may  be  appealed  from.  Blossom  v.  Railroad  Company,  1 
Wallace,  655;  Sage  v.  Railroad  Company,  96  U.  S.  712. 

7 


98       JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

The  next  inquiry  is,  Who  are  to  be  parties  to  a 
writ  of  error,  or  an  appeal?     The  general  answer 
is,  all  parties  on  the  record  who  are  interested  to 
reverse  the  judgment  or  decree  must  be  parties  to 
the  writ  of  error  or  appeal ;  but  if  one  or  more  of 
these  parties  refuse  to  unite  in  a  writ  of  error  or 
an    appeal,    and   this   fact  appears  of  record,   the 
remaining  party  or  parties  may  prosecute.     So  that, 
if  there  are  two  parties  to  a  suit,  where  the  judg- 
ment or  decree  is  against  them,  and  one  desires  to 
appeal,  and  the  other  refuses,  it  is  necessary  to  get 
that  fact  upon  the  record.     When  you  have  done 
so,    then   the  remaining  party  may   prosecute  his 
writ  of  error  or  appeal.     That  was  settled  in  the 
case  of  Masterson  v.   Herndon,   10   Wallace,   416.^ 
And  there  may  be  cases  where  a  party,  although  he 
is  a  joint  party  for  some  purposes,  has  nevertheless 
a  distinct  interest  controlled  by  the  judgment  or 
decree.     It  is  difficult  to  suppose  a  case  where  one 
of  two  joint  parties  could  have  a  distinct  interest 
at  law,  but  it  is  not  at  all  difficult  to  suppose  that 
one  of  two  joint  parties  may  have  a  distinct  interest 
in  equity,  controlled  by  a  decree,  and  in  that  case 
he  alone  may  take  the  appeal.     This  was  settled  in 
the  case  of  Todd  v.  Daniel,  16  Peters,  521,  and  the 
court  at  the  same  time  held  in  that  case  that  if 
several  appeal,   and  some  refuse  to  prosecute,  but 
the    remaining    party    desires    to    prosecute,    the 
Supreme  Court  will  pronounce  the  appeal  deserted 
by  the  others,  and  hear  the  appeal  of  the  one  who 
desires  to  be  heard. ^ 

1  [Sipperley  v.  Smith,  155  U.  S.  86.] 

2  AH  the  parties  against  whom  a  joint  judgment  or  decree  is 
rendered  must  join  in  the  writ  of  error  or  appeal,  or  it  will  be  dis- 


APPEALS  FROM  FEDERAL  COURTS.        99 

The  right  to  take  an  appeal  is  an  absolute  right. 
It  is  not  necessary  to  apply  to  a  judge  to  allow  an 
appeal,  in  order  to  obtain  the  right  to  appeal,  but, 
at  the  same  time,  it  has  been  held  by  the  Supreme 
Court  —  for  reasons  which  are  not  fully  explained, 
and  which  I  must  say  I  do  not  myself  fully  under- 
stand —  that  an  appeal  must  be  allowed  by  a  judge. 
This  was  held  in  the  case  of  Barrel  v.  Trayisporta- 
tion  Company,  3  Wallace,  424,  and  in  the  case  of 
Pierce  v.  Cox,  9  Wallace,  786.  But  while  they 
held  that  an  appeal  must  be  allowed  in  order  to  be 
effectual,  they  held  it  also  to  be  an  absolute  right, 
not  depending  upon  judicial  discretion,  and  they 
will  enforce  that  right  by  a  writ  of  mandamus  in 
any  proper  case.  Suppose,  for  instance,  that  a 
party  has  a  right  to  an  appeal.  He  claims  it,  and 
the  judge  of  whom  he  claims  it  refuses  to  allow  it. 
Then  the  Supreme  Court  say  they  will  issue  their 
writ  of  mandamus  to  that  judge,  commanding  him 
to  allow  it.  That  was  held  in  the  case  of  The 
United  States  v.  Adams,  6  Wallace,  101 ;  and  there 
is  an  earlier  case,  The  United  States  v.  Gomez,  3 
Wallace,  752. » 

An  appeal  may  be  claimed,   and   allowed   by  a 
judge,  either  in  court  or  out  of  court,  in  term  time 

missed,  unless  sufficient  cause  for  the  non-joinder  be  shown.  Simp- 
son V.  Grceleij,  20  AVallace,  L52  ;  Williams  v.  Bcmk,  11  Wheaton,  414 ; 
Masterson  v.  Herndon,  10  Wallace,  416. 

1  §  692  of  the  Revised  Statutes  used  the  peremptory  language  that 
"an  appeal  shall  he  allowed  to  the  Supreme  Court  from  all  final 
decrees  of  any  Circuit  Court,  etc.,  .  .  .  where  the  matter  in  dispute 
exceeds,  etc.,  and  the  Supreme  Court  is  required  to  receive,  hear,  and 
determine  such  appeals."  The  most  recent  case  in  which  a  man- 
damus has  been  granted,  directing  the  Circuit  Court  to  allow  an 
appeal,  is  Ex  parte  Railroad  Company,  95  U.  S.  221. 


100      JURISDICTION,   PKACTICE,   AND   JURISPRUDENCE. 

or  vacation.  But  there  is  an  important  difference 
between  an  appeal  claimed  after  the  expiration  of 
the  term,  and  out  of  court,  and  one  claimed  in 
court  at  the  term  when  the  decree  was  rendered; 
because,  in  the  latter  case,  it  is  not  necessary  to 
take  out  any  citation.  The  claim  and  allowance  of 
the  appeal  at  the  term  when  the  decree  was  rendered 
is  sufhcient  notice  to  the  opposite  party  that  an 
appeal  has  been  taken,  and  that  he  must  attend  to 
its  prosecution.  On  the  other  hand,  if  the  appeal 
is  not  claimed  at  the  term  when  the  decree  was 
entered,  and  in  open  court,  a  citation  to  answer  to 
the  appeal  in  the  Supreme  Court  must  be  taken  and 
served,  according  to  the  requirements  of  the  law  in 
that  behalf. 

Writs  of  error,  where  they  are  taken  under  this 
Act  of  Congress,  are  issued  by  the  clerk  of  the 
Circuit  Court  usually, — he  is  authorized  by  the 
statute  to  do  so,  —  although  they  may  be  issued  by 
the  clerk  of  the  Supreme  Court.  It  is,  of  course, 
far  more  convenient  for  local  practitioners  to  apply 
to  the  clerk  of  the  Circuit  Court,  than  to  apply  to 
the  clerk  of  the  Supreme  Court;  therefore,  in 
ninety-nine  cases  out  of  a  hundred,  the  writ  of  error 
is  issued  by  the  clerk  of  the  Circuit  Court  of  the 
district  where  the  judgment  was  pronounced. 

Much  strictness  of  practice  obtained  at  an  early 
day  in  the  Supreme  Court  concerning  forms  of 
writs  of  error,  and  requirements  in  regard  to  certi- 
ficates and  returns.  But  this  same  act  to  which  I 
have  already  referred,  of  the  1st  of  June,  1872, 
contains  in  its  third  section  a  very  broad  statute  of 
jeofails,  and  it  is  difficult  to  see,  on   reading   it, 


APPEALS  FROM  FEDERAL  COURTS.       101 

what  defect  cannot  now  be  amended  in  the  discre- 
tion of  the  court,  if  they  think  proper  to  allow  it. 
There  are  always  two  contending  forces  on  this 
subject,  —  one,  of  those  who  desire  to  discourage 
laxity,  and  produce  accuracy  of  proceedings;  and 
the  other,  of  those  who  make  allowances  for  laxity, 
and  perhaps  some  degree  of  carelessness,  and  pass 
it  over,  if  possible.  The  court  seem  formerly  some- 
times to  have  taken  the  first  direction;  Congress 
has  certainly,  in  this  act,  taken  the  second,  very 
decidedly.  1 

There  are  two  other  subjects  which  I  ought  to 
speak  of  this  evening,  and  which  will  not  occupy 
much  time;  one  is,  appeals  from  the  Circuit  Court 
under  the  Bankruptcy  Act.  The  second  section  of 
the  Bankruptcy  Act,  which  is  found  in  14  Statutes 
at  Large,  518,  gives  the  Circuit  Court  general 
superintendence  over  all  questions  and  cases  aris- 
ing under  that  act  in  the  District  Court.  You  are 
aware  that  the  District  Court  (I  shall  come  to  that 
hereafter  in  the  course  of  these  lectures)  has  origi- 
nal jurisdiction  in  cases  of  bankruptcy,  and  this 
section  gives  the  Circuit  Court  general  superin- 
tendence over  all  questions  and  cases  arising  under 
that  act  in  the  District  Court,  in  the  nature  of  an 
appeal ;  and  the  section  also  goes  on  to  give  the 
Circuit  Court  concurrent  jurisdiction  with  the  Dis- 
trict Court  over  all  suits  at  law,  or  in  equity, 
by  or  against  any  assignee  touching  the  property, 
or  rights  of  property,  of  the  bankrupt.  You  will 
see  that  these  are  perfectly  distinct:  the  one  is  a 

1  See  §  1005  of  the  Revised  Statutes,  re-enacting  the  third  section 
of  the  Act  of  June  1,  1872. 


102      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

jurisdiction  by  the  Circuit  Court  to  superintend 
the  proceedings  of  the  District  Court,  and  see  that 
they  are  right ;  the  other  is  a  jurisdiction  concur- 
rent with  the  District  Court,  to  entertain  suits  by 
the  assignee  of  a  bankrupt,  or  against  the  assignee 
of  a  bankrupt,  concerning  any  property,  or  rights 
of  property,  of  a  bankrupt.  Well,  in  the  case  of 
Morgan  v.  Thornhill,  11  Wallace,  65,  the  Supreme 
Court  decided  that  it  had  appellate  jurisdiction 
over  the  second  of  these  classes  of  cases,  and  not 
over  the  first ;  that,  if  a  party  should  apply  to  the 
Circuit  Court  by  a  petition,  and  suggest  that  the 
District  Court  had  committed  an  error  in  some 
bankruptcy  proceeding,  and  the  Circuit  Court  should 
thereupon  look  into  the  matter,  and  decide  one  way 
or  the  other,  there  can  be  no  appeal  to  the  Supreme 
Court,  — that  would  be  final.  ^  On  the  other  hand, 
under  this  second  clause  of  the  section,  if  an  as- 
signee in  bankruptcy  brings  a  suit  against  a  third 
person  touching  any  property,  or  right  of  property, 
of  the  bankrupt,  or  if  a  third  person  brings  a  suit 
against  the  assignee,  then  there  could  be  appellate 
jurisdiction  in  the  Supreme  Court;  provided  the 
amount  in  controversy  was  sufficient. ^ 

In  order  to  get  an  appeal  or  a  writ  of  error  into 

1  This  subject  is  now  regulated  by  the  Revised  Statutes,  sub- 
stantially as  stated  in  the  text.  See  §§  4979-4989,  and  the  cases  of 
Wiswall  V.  Campbell,  93  U.  S.  347 ;  Hill  v.  Thompson,  94  U.  S.  322 ; 
Milner  v.  Meek,  95  U.  S.  252 ;  Nimick  v.  Coleman,  lb.  266.  [This 
supervisory  power  of  the  Circuit  Court  still  remains,  being  unaffected 
by  the  Act  of  1891,  whicli  took  away  the  appellate  jurisdiction  of  the 
Circuit  Court.     In  re  Briggs,  61  Fed.  Rep.  498.] 

■^  [The  appeal  is  now  to  the  Circuit  Court  of  Appeals,  and  probably 
there  is  no  money  limit  to  it.  In  re  Brings,  supra.  But  see  Hunting- 
ton V.  Saunders,  72  Fed.  Rep.  10.] 


APPEALS   FKOM   FEDERAL   COURTS.  103 

the  Supreme  Court  of  the  United  States,  it  is 
necessary  to  apply  to  the  clerk  of  the  Circuit  Court, 
who  makes  out  a  transcript  of  the  record,  and,  if  it 
is  a  writ  of  error,  annexes  it  to  the  writ,  and  that 
operates  as  a  return  of  the  writ.  Then,  counsel 
should  take  that  transcript,  whether  it  be  annexed 
to  the  writ  of  error,  or  simply  a  transcript  of  the 
proceedings  in  equity  or  admiralty,  on  appeal,  and 
forward  it  to  the  clerk  of  the  Supreme  Court  at 
Washington.  This  may  be  done  at  any  time.  It 
is  not  necessary  that  it  should  be  sent  to  him  in 
term  time ;  it  is  not  necessary  that  he  should  enter 
it  on  his  calendar  in  term  time.  The  practice  is 
for  him  to  receive  it,  and  enter  it  whenever  it  is 
sent.  It  must  be  sent  within  the  first  six  days  of 
the  term  to  which  it  is  returnable;  otherwise  a 
motion  to  dismiss  the  appeal  or  writ  of  error  may 
be  made ;  but  it  may  be  sent  at  any  time  during 
vacation.  It  must  be  accompanied,  according  to 
the  rules  of  the  court,  by  a  bond,  in  the  sum  of  two 
hundred  dollars,  with  sufficient  surety  to  secure  the 
fees  of  the  clerk,  —  a  provision  which  was  found  to 
be  necessary,  because,  in  so  large  a  country  as  ours, 
these  records  coming  from  so  great  distances,  the 
clerk  could  not  be  reasonably  secure  of  being  paid 
his  fees  without  some  bond  or  deposit  of  money ; 
and  he  accepts  money  in  lieu  of  the  bond,  if  it  is 
desired. 

There  are  two  contingencies  in  which  it  may  be 
necessary  to  use  other  processes,  after  the  writ  of 
error,  or  the  appeal,  is  entered.  Suppose,  for 
instance,  that  a  portion  of  the  record  has  been 
omitted   by  mistake.     A  party   on  examining   the 


104      JURISDICTION,    PRACTICE,    AND   JURISPRUDENCE. 

record  finds  that  something  is  not  there  which 
should  be  there,  and  which  is  important  to  him. 
He  has  a  right  at  the  first  term  of  the  court  to  sug- 
gest that  there  is  a  diminution  of  the  record,  as  it 
is  technically  termed,  and  move  for  a  writ  of  cer- 
tiorari^ to  be  directed  to  the  clerk  of  the  court 
below,  directing  him  to  send  up  what  he  failed  to 
send  the  first  time;  and  that  is  necessary,  in  ordi- 
nary practice,  quite  frequently. 

I  might  mention  in  this  same  connection,  that 
each  Friday  of  the  term  is  set  apart  as  "motion 
day,"  and  on  that  day  counsel,  by  giving  notice  to 
their  opponents,  can  be  heard  upon  any  motion, 
either  to  dismiss  a  writ  of  error,  or  an  appeal,  for 
want  of  jurisdiction,  or  a  motion  for  a  writ  of  cer- 
tiorari^ or  any  other  motion  necessary  in  a  cause. ^ 

There  is  another  class. of  appeals  which  you  may 
hereafter  be  interested  to  understand,  and  that  is, 
from  the  Court  of  Claims.  The  Court  of  Claims, 
you  are  aware,  is  established  by  Congress,  at  Wash- 
ington, for  the  purpose  of  adjudicating  on  certain 
classes  of  claims  against  the  government,  and  it  is 
a  court  of  great  importance,  and  disposes  of  very 
large  amounts  of  property.  I  will  give  you  a  refer- 
ence to  the  statutes  by  which  it  was  established :  14 
Statutes  at  Large,  9,  44;  15  Statutes  at  Large, 
75.  These  are  the  laws  by  which  the  present  con- 
stitution of  that  court  is  regulated.  It  was  origi- 
nally established  by  an  act,  which  is  now  repealed, 
in  10  Statutes  at  Large,  612,  and  there  have  been 
two  acts  of  amendment  which  it  is  important  to 
consider,    if   you    look    into   the   subject.      One    is 

1  By  rule  of  the  Supreme  Court,  motion  day  is  now  Monday. 


APPEALS  FROM  FEDERAL  COURTS.       105 

found  in  12  Statutes  at  Large,  765 ;  the  other  is  in 
14  Statutes  at  Large,  9,  —  1  have  already  given  you 
that. 

Now,  there  have  been  some  decisions  of  the 
Supreme  Court  upon  the  construction  of  those  laws 
which  it  may  be  useful  for  you,  if  you  look  into 
this  subject,  to  read.  They  are  Cfordon  v.  The 
United  States,  2  Wallace,  561;  Ux  parte  Zellner, 
9  Wallace,  244 ;  De  G-root  v.  The  United  States,  5 
AVallace,  419;  and  The  United  States  v.  Adams,  9 
Wallace,  661.  If  you  have  any  occasion  to  inquire 
into  the  constitution  of  this  court,  and  the  mode  by 
which  it  is  connected  with  the  Supreme  Court  by 
way  of  appeal,  1  believe  you  will  find  that  these 
references  will  give  you  the  necessary  information.  ^ 

There  is  only  one  other  topic  about  which  I  will 
say  a  few  words,  and  that  is  the  courts  of  the  Ter- 
ritories. The  laws  of  Congress  organizing  the 
different  Territories  from  time  to  time  have  alwavs 
provided  for  the  constitution  of  appropriate  courts 
in  those  Territories ;  but  it  is  settled  that  these  are 
not  courts  of  the  United  States  under  the  Consti- 
tution of  the  United  States.  They  are  what  are 
called  "Congressional  Courts,"  established  by  force 
of  the  authority  conferred  on  Congress  to  make  all 
needful  rules  and  regulations  concerning  the  terri- 
tory and  other  property  of  the  United  States.  The 
judges  of  those  courts  do  not  hold  during  good 
behavior;  they  hold  for  a  term  of  years.  And  there 
are  various  other  provisions  in  the  acts  constituting 
the  courts,  which  distinguish  them  from  the  courts 

1  See  §§  707,  708  of  the  Revised  Statutes.  [See  also  United  States 
V.  Jones,  119  U.  S.  477.J 


106      JURISDICTION,    TRACTICE,   AND   JURISPRUDENCE. 

of  the  United  States.  Nevertheless,  there  is  an 
appeal  from  the  highest  courts  of  the  Territories  to 
the  Supreme  Court  of  the  United  States,  and  you 
will  find  this  subject  treated  historically,  and  with 
great  clearness,  by  the  present  Chief  Justice,  in 
the  case  of  Clinton  v.  EnylebrecM,  13  Wallace,  434, 
where  he  shows  what  the  nature  of  these  courts  is, 
how  they  are  constituted,  how  they  differ  from 
courts  under  the  Constitution  of  the  United  States, 
and  how  they  have  been  regulated,  historically  and 
actually,  from  the  very  origin  of  the  government.  ^ 

1  See  §§  702,  703  of  the  Revised  Statutes.  [See  also  supra,  p.  79. 
The  appeal  now  lies,  in  some  cases,  as  we  have  seeu,  to  the  Circuit 
Court  of  Appeals ;  and  this  is  true  of  cases  brought  in  the  Circuit 
Court  by  the  Interstate  Commerce  Commission.  Interstate  Commerce 
Commission  v.  Atchison,  Topeka,  ^'c.  R.  R.  Co.,  149  U.  S.  264.] 


THE   CIKCUIT   COURTS.  107 


CHAPTER   lY. 

THE   CIRCUIT    COURTS. 

The  original  constitution  of  the  Circuit  Courts  of 
the  United  States,  by  Congress,  was  made  by  the 
Judiciary  Act  of  September  24,  1789.  The  growth 
of  the  country  and  the  great  increase  of  business  of 
these  courts  have,  led,  from  time  to  time,  to  some 
changes ;  not  in  the  structure  and  plan  of  the  courts 
themselves,  but  to  some  expansion  of  their  powers, 
and  of  the  means  for  working  them,  to  which  refer- 
ence may  hereafter  be  made  in  the  course  of  these 
lectures.  But  my  present  object  is  to  describe  to 
you  what  the  general  plan  of  these  courts  now  is, 
without  adverting  to  the  changes  which  have  been 
made  in  their  structure  since  they  were  first  estab- 
lished. I  ought,  however,  to  say,  1  think,  that 
there  has  been  no  substantial  change  in  the  general 
structure  and  plan  of  these  courts,  or  their  rela- 
tions to  other  courts,  since  they  were  established ; 
and  certainly  the  fact  that  this  plan  has  been  found 
to  continue  applicable  and  preferable  under  such 
vast  changes  of  circumstances  as  have  occurred 
between  1789  and  the  present  day,  shows,  in  the 
most  conclusive  manner,  the  wisdom  of  those  by 
whom  the  plan  was  originally  framed.  And  this 
general  plan  has  not  remained  the  same  from  want 


108      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

of  attention  to  the  subject ;  on  the  contrary,  it  has 
undergone,  at  various  periods,  the  most  searching 
and  comprehensive  examination;  but  notwithstand- 
ing there  have  been  those,  in  Congress  and  out  of 
Congress,  who  have  set  out  with  the  idea  that  they 
could  improve  that  plan,  they  have  always  come 
back  to  the  conviction,  or,  at  any  rate,  those  who 
are  clothed  with  the  power  to  make  changes  have 
come  back  to  the  conviction,  that  no  considerable 
changes  could  be  made  for  the  better;  and  these 
courts  have  remained  to  this  day  very  much,  in 
their  general  structure,  in  their  jurisdiction,  and 
in  their  relations  to  other  courts,  what  they  were 
as  constituted  in  September,   1789. 

The  purpose  of  this  lecture,  as  I  have  said,  is  to 
exhibit  to  you  this  general  plan,  as  it  now  exists ; 
what  are  the  means  for  working  it,  and  what  is  the 
jurisdiction  which  is  exercised  by  it;  and  by  what 
judges,  and  through  what  rules  of  practice,  this 
jurisdiction  is  applied.  They  who  framed  this 
system  had  five  principal  things  to  consider:  first, 
the  territorial  divisions  within  and  for  which  these 
courts  were  to  act;  second,  the  personnel  of  the 
courts,  —  what  judges  were  to  constitute  them ; 
third,  what  jurisdiction  should  be  assigned  to 
them,  —  what  parts  of  the  judicial  power  of  the 
United  States  these  courts  should  exercise ;  fourth, 
whence  should  they  derive  their  pleadings,  their 
practice,  and  their  rules  of  decision;  and,  fifth, 
what  should  be  their  relation  to  other  courts.  All 
these  particulars  the  framers  of  this  plan  had  to 
consider,  and  however  obvious  and  clear  it  may 
now  seem  to  us  each  would  be,  still  at  the  time 


THE  CIRCUIT   COURTS.  109 

when  the  Act  of  1789  was  passed  it  was  an  open 
field ;  and  the  authors  of  this  judiciary  system  of 
the  United  States,  so  far  as  it  was  the  subject  of 
Congressional  legislation,  were  at  liberty  to  move 
in  any  direction.  And  when  you  look  back  to  the 
guides  and  landmarks  which  might  indicate  one  or 
the  other  course  as  proper,  they  will  be  found  to  be 
exceedingly  few.  To  me  it  is  a  subject  almost  of 
wonder  that  they  should  have  made  so  few  mis- 
takes, and  that  in  dealing  with  a  subject  so  vast  as 
this,  in  which  they  had  so  few  guides,  they  should 
have  taken  the  direction  they  did,  and  followed  it 
so  comprehensively  and  so  steadily  that  it  is  almost 
impossible,  with  the  wisdom  that  we  have  derived 
from  experience  since,  to  make  any  change  for  the 
better. 

The  first  of  these  questions  to  which  I  have 
adverted  was,  what  territorial  divisions  they  should 
establish,  within  and  for  which  these  courts  should 
be  held.  The  Constitution  was  silent  on  the  sub- 
ject; it  committed  the  entire  power  to  Congress, 
and  it  was  for  Congress  to  fix  upon  some  unit  of 
territorial  division  within  and  for  which  these  Cir- 
cuit Courts  should  be  held.  You  know  that  the 
unit  of  territorial  division  in  England,  and  in  each 
of  the  several  States,  at  the  time  when  this  act  was 
passed,  was  the  county.  What  should  be  their 
unit,  was  the  question  they  had  to  consider;  and 
they  fixed  on  the  State  as  the  unit,  to  be  divided 
when  and  as  circumstances  should  require ;  and  as 
an  exemplification  of  the  principle,  that,  while  ea,ch 
of  the  several  States  should  be  considered  the  unit 
of  territorial  division,  still  local  interests  were  to 


110      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

be   regarded,  they  made  what  was  known  at  that 
time  as  the  District  of  Maine,  which  was  a  part  of 
Massachusetts,    a   District   by   itself.      They   also 
made   a   separate    judicial   District   of    Kentucky, 
which   at  that  time  was  part  of  the  State  of  Vir- 
ginia.    I  mention  this  as  showing  that  the  framers 
of  this  act  foresaw  that,  while  they  adopted  the 
State  as  the  territorial  unit  of  the  division  of  the 
country,  within  and  for  which  the  Circuit  Courts 
were  to  be  held,  they  nevertheless  contemplated, 
and   actually   carried   into   effect,    a   still   further 
division  in  the  manner  which  I  have  mentioned; 
making  the  District  of  Maine  and  the  District  of 
Kentucky   separate   judicial   Districts.     And   that 
policy  has  been  carried  out  since,  in  accordance 
with  this  original  plan,  so  that,  whenever  the  wants 
of  a  part  of  a  State  have  required,  for  the  distribu- 
tion of  justice  among  the  people,  and  for  the  execu- 
tion of  the  criminal  laws  of  the  United  States,  a 
further  division  of  the  territory  of  the  State,  that 
division  has  been  from  time  to  time  made,  and  is 
in  perfect  harmony  and  accordance  with  the  original 
plan.     Thus,    in   the    State   of   New  York   at  the 
present  time,  there   are  three  different   Districts, 
and  it  is  contemplated,  I  believe,  to  make  a  fourth, 
and  so  in  several  of  the  other  States  ;i  but  these 
divisions  into  different  Districts  are  not  merely  in 
harmony  with  the  original  plan,  as  enacted  in  the 
manner  I  have  mentioned,    which  erected  certain 
separate  Districts  within  the  States,  but  they  are 
also  —  as  you  will  perceive  as  I  proceed  —  in  har- 

1  [The  only  States  divided  as  yet  into  three  Districts  are  Alahama, 
New  York,  Tennessee,  and  Texas.] 


THE   CIRCUIT   COUKTS.  Ill 

mony  with  those  principles  in  reference  to  the  appli- 
cation of  local  law,  which  the  framers  of  this  act 
had  in  view  at  the  time  when  it  was  passed. 

The  next  question  which  they  had  to  consider 
with  reference  to  this  matter  of  the  territorial 
division  of  the  country  was  how  far  should  the  pro- 
cesses of  these  courts  run.  The  Constitution  and 
laws  of  the  United  States  prevail  throughout  the 
whole  territory  of  the  United  States,  and  are  bind- 
ing upon  every  individual  citizen ;  but  the  question 
which  they  had  to  consider,  as  a  practical  question, 
was,  how  far  should  the  processes  of  each  of  these 
Circuit  Courts,  held  within  and  for  each  of  these 
Districts,  run,  in  order  to  carry  out,  in  the  most 
effectual  manner  consistent  with  the  liberty  and 
convenience  of  the  citizen,  the  purposes  which  were 
had  in  view  in  establishing  the  courts. 

They  decided,  in  the  first  place,  that  the  asser- 
tion and  maintenance  of  the  criminal  laws  of  the 
United  States  required  that  the  processes  of  these 
courts  should  run  everywhere  within  the  territory 
of  the  United  States ;  that  wherever  a  criminal 
might  be,  he  should  be  subject  to  arrest  by  a 
warrant  from  that  Circuit  Court  of  the  United 
States  which,  under  the  Constitution  and  laws,  had 
jurisdiction  to  try  him,  and  therefore  a  bench 
warrant  would  run  from  Massachusetts  to  the  most 
extreme  part  of  the  territory  of  the  United  States, 
to  arrest  a  criminal  who  was  indicted  in  the 
Circuit  Court,  and  bring  him  before  that  court  for 
trial.  In  that  particular,  the  powe7's  of  the  court 
had  no  territorial  limits,  except  those  of  the  United 
States;  and  in  accordance  with  this,  a  process  by 


112      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

which  witnesses  could  be  brought  before  the  court  in 
criminal  trials  ran  throughout  the  entire  territory 
of  the  United  States.  This  was  provided  for  in  the 
Judiciary  Act,  to  which  I  have  already  referred,  and 
those  provisions  have  always  remained  the  same.^ 

The  next  thing  to  be  considered  was,  what  crimi- 
nals should  be  subject  to  the  jurisdiction  of  each  of 
these  courts.  The  Constitution  contained  a  pro- 
vision which  had  some  bearing  on  this  subject,  in 
its  third  article,  which  I  will  read :  — 

"  The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  jury,  and  such  trial  shall 
be  held  in  the  State  where  the  said  crimes  shall 
have  been  committed ;  but  when  not  committed 
within  any  State,  the  trial  shall  be  at  such  place  or 
places  as  the  Congress  may  by  law  have  directed." 

It  was  found,  on  examination,  that  this  was  a 
defective  provision ;  and  accordingly  the  sixth 
amendment  of  the  Constitution  made  further  pro- 
vision to  this  effect:  — 

"In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an 
impartial  jury  of  the  State  and  District  wherein  the 
crime  shall  have  been  committed,  which  District 
shall  have  been  previously  ascertained  by  law,  and 
to  be  informed  of  the  nature  and  cause  of  the  accu- 
sation ;  to  be  confronted  with  the  witnesses  against 
him;  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor;  and  to  have  the  assistance 
of  counsel  for  his  defence." 

So  far  as  regards  the  territorial  jurisdiction  of 
these  courts,  it  is  that  he  is  to  be  tried  "by  an 

^  See  Revised  Statutes,  §  1014. 


THE    CIRCUIT   COURTS.  113 

impartial  jury,"  in  the  "District  wherein  the  crime 
shall  have  been  committed,  which  District  shall 
have  been  previously  ascertained  by  law. "  Neither 
of  these  provisions,  however,  has  any  reference  to 
crimes  committed  out  of  the  limits  of  any  State. 
They  are  expressly  confined  to  crimes  committed  in 
a  State,  and  in  the  case  of  United  States  v.  Dawson, 
15  Howard,  467,  the  Supreme  Court  of  the  United 
States  decided  that  neither  of  these  provisions  of 
the  Constitution  had  any  reference  to  crimes  com- 
mitted in  the  Indian  country,  out  of  the  limits  of 
any  State  or  of  any  organized  Territory  of  the 
United  States. 

Now,  these  being  the  provisions  of  the  Constitu- 
tion under  which,  and  in  subordination  to  which. 
Congress  must  of  course  legislate,  they  passed  the 
Act  of  the  30th  of  April,  1790,  which  is  found  in  1 
Statutes  at  Large,  114,  §  8.  It  is  the  close  of 
that  section :  "  The  trial  of  crimes  committed  on 
the  high  seas,  or  in  any  place  out  of  the  jurisdiction 
of  any  particular  State,  shall  be  in  the  District 
where  the  offender  is  apprehended,  or  into  which 
he  may  first  be  brought."  Now,  there  is  a  very 
large  criminal  jurisdiction  exercised  by  the  Circuit 
Courts  of  the  United  States  over  offences  committed 
on  the  high  seas,  or  against  laws  passed  by  Congress 
under  their  authority  to  regulate  commerce,  and  to 
define  and  punish  piracy  and  offences  against  the 
laws  of  nations;  and  in  all  that  class  of  cases,  as 
well  as  cases  of  crimes  committed  out  of  any  State 
or  Territory,  on  the  land,  which  are  still  offences 
against  the  laws  of  the  United  States,  the  criminal 
is  to  be  tried  in  the  Circuit  Court  of  that  District 

8 


114      JURISDICTION,   PRACTICE,    AND   JURISPRUDENCE. 

into  which  he  is  brought  as  a  prisoner,  supposing 
him  to  have  been  arrested  abroad  or  on  the  high 
seas,  or  where  he  may  first  be  arrested,  if  he  has 
come  voluntarily  within  that  jurisdiction.  So  that 
all  these  provisions  of  the  Constitution  to  which  I 
have  referred  in  regard  to  the  trial  of  crimes  com- 
mitted within  the  States,  are  followed  out  and 
obeyed  by  trying  criminals  in  that  Circuit  Court 
which  is  held  in  a  District  previously  ascertained 
by  law,  within  the  limits  of  which  the  crime  was 
committed,  provided  the  crime  was  committed 
within  the  limits  of  a  State.  On  the  other  hand, 
if  it  was  on  the  high  seas,  or  out  of  the  limits  of 
any  State  or  organized  Territory,  then  the  Circuit 
Court  has  jurisdiction  over  the  criminal,  provided 
he  was  first  brought  compulsorily  within  their  juris- 
diction, or  came  voluntarily  within  it  and  was 
there  arrested.^ 

This  Act  of  April  30,  1790,  was  re-enacted, 
without  change,  by  what  is  now  the  existing  law  of 
March  3,  1825,  found  in  4  Statutes  at  Large,  118, 
§  14.  That  Act  of  March  3,  1825,  was  a  revision 
and  re-enactment,  with  some  changes  and  addi- 
tions, of  the  criminal  laws  of  the  United  States. 
The  author  of  it  was  Mr.  Webster.  It  is  an  act 
drawn  with  great  precision  -and  clearness,  which 
has  given  rise  to  very  few  questions  upon  its 
language,  or  upon  the  meaning  and  effect  of  its 
provisions,  and  it  is  now  the  existing  general 
criminal  statute  of  the  United  States.^ 

1  As  to  the  district  into  which  the  criminal  is  first  brought,  see 
United  States  v.  Anvo,  19  WaUace,  486. 

2  See  Eevised  Statutes,  Title  LXX.,  Crimes. 


THE    CIRCUIT    COURTS.  115 

I  think  this  is  all  I  need  say  to  you  in  regard  to 
the  jurisdiction  of  the  Circuit  Courts  over  criminals, 
except  to  add,  what  I  shall  explain  somewhat  here- 
after, that  the  Circuit  Court  of  the  United  States 
has,  under  the  eleventh  section  of  the  Judiciary 
Act,  general  jurisdiction  over  all  crimes  and 
offences  aijainst  the  laws  of  the  United  States. 
It  is  a  jurisdiction  concurrent  with  that  which 
belongs  to  the  District  Courts,  and  I  shall  speak 
more  particularly  of  it  when  I  come  to  speak  of  the 
District  Courts,  because  there  are  various  pro- 
visions in  regard  to  remitting  indictments  from 
one  court  to  another  which  it  will  be  necessary  to 
notice,  and  I  think  it  can  be  better  done  in  that 
connection. 

I  will  now  ask  your  attention  to  the  civil  juris- 
diction of  these  courts. 

[The  present  law  upon  this  subject  was  enacted 
August  13,  1888,^  being  an  amendment  or  correc- 
tion of  the  Act  of  March  3,  1887.  The  Act  of 
1887  was  an  amendment  of  the  Act  of  March  3, 
1875,  which  will  be  stated  presently.  It  was 
passed  by  Congress  in  a  hurry  upon  the  last  day  of 
the  session,  and  it  was  so  ambiguous,  and  in  fact 
unintelligible,  that  it  was  found  necessary  to  cor- 
rect it  by  the  Act  of  1888,  which  runs  as  follows : 

"The  Circuit  Courts  of  the  United  States  shall 
have  original  cognizance,  concurrent  with  the 
courts  of  the  several  States,  of  all  suits  of  a  civil 
nature,  at  common  law,  or  in  equity  [1]  where  the 
matter  in  dispute  exceeds,  exclasive  of  interest  and 
costs,  the  sum  or  value  of  $2000,  and  arising  under 

1  [25  Stat.  chap.  866,  p.  433.] 


116      JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

the  Constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their 
authority,  [2]  or  in  which  controversy  the  United 
States  are  plaintiffs  or  petitioners,  [3]  or  in  which 
there  shall  be  a  controversy  between  citizens  of 
different  States,  in  which  the  matter  in  dispute 
exceeds,  exclusive  of  interest  and  costs,  the  sum 
or  value  aforesaid,  [4]  or  a  controversy  between 
citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  [5]  or  a  controversy 
between  citizens  of  a  State,  and  foreign  States, 
citizens  or  subjects,  in  which  the  matter  in  dispute 
exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  aforesaid;  [6]  and  shall  have  exclusive  cog- 
nizance of  all  crimes  and  offences  cognizable  under 
the  authority  of  the  United  States,  except  as  other- 
wise provided  by  law,  and  concurrent  jui-isdiction 
with  the  District  Courts  of  the  crimes  and  offences 
cognizable  by  them.  [7]  But  no  person  shall  be 
arrested  in  one  District  for  trial  in  another  in  any 
civil  action  before  a  Circuit  or  District  Court;  [8] 
and  no  civil  suit  shall  be  brought  before  either  of 
said  courts  against  any  person  by  any  original  pro- 
cess or  proceeding  in  any  other  District  than  that 
whereof  he  is  an  inhabitant,^  but  where  the  juris- 
diction is  founded  only  on  the  fact  that  the  action 
is  between  citizens  of  different  States,  suit  shall  be 
brought  only  in  the  District  of  the  residence  ^  of 
either  the  plaintiff  or  the  defendant ;  [9]  nor  shall 
any  Circuit  or  District  Court  have  cognizance  of  any 
suit,  except  upon  foreign  bills  of  exchange,  to  recover 

1  ["  Inhabitant,"   in  this   Act,   is  synonymous  with    "  resident." 
Bicycle  Stepladder  Co.  v.  Gordon,  57  Fed.  Rep.  529.] 


THE   CIKCUIT   COURTS.  117 

the  contents  of  any  promissory  note,  or  other  chose 
in  action,  in  favor  of  any  assignee,  or  of  any  sub- 
sequent holder,  if  such  instrument  be  payable  to 
bearer  and  be  not  made  by  any  corporation,  unless 
such  suit  might  have  been  prosecuted  in  such  court 
to  recover  the  said  contents  if  no  assignment  or 
transfer  had  been  made." 

The  next  paragraph  refers  to  the  removal  of 
causes  from  the  State  courts  to  the  Circuit  Court, 
a  subject  vk^hich  will  be  considered  later. 

Sect.  2.  Provides  that  receivers,  appointed  by  a 
United  States  Court,  shall  manage  the  property  in 
their  charge  according  to  the  laws  of  the  State  in 
which  it  is  situated ;  and  a  penalty  is  provided  for 
the  violation  of  this  law. 

Sect.  3.  Provides  that  a  suit  against  such  a 
receiver  may  be  brought  without  leave  of  the  court; 
"but  such  suit  shall  be  subject  to  the  general  equity 
jurisdiction  of  the  court  in  which  such  receiver  or 
manager  was  appointed,  so  far  as  the  same  shall  be 
necessary  to  the  ends  of  justice."  ^ 

Sect.  4.  Provides  that  National  Banks  shall, 
for  the  purpose  of  suit,  be  deemed  citizens  of  the 
States  where  they  arc  located;  and  that  the  Circuit 
and  District  Courts  shall  have  over  suits  by  or 
against  them  the  same  jurisdiction  only  as  if  they 
were  individuals.     But  "the  provisions  of  this  sec- 

1  [See  Rouse  v.  Hornsbi/,  161  U.  S.  588.  By  Revised  Statutes, 
sect.  629,  the  Circuit  Courts  have  jurisdiction  "  of  all  suits  at  common 
law  where  the  United  States,  or  any  officer  thereof,  suing  under  the 
authority  of  any  Act  of  Congress,  are  plaintiffs."  This  clause  in- 
cludes Receivers  appointed  by  United  States  Courts ;  but  as  to 
whether  it  includes  Receivers  of  National  Banks  appointed  by  tlie 
Comptroller  of  the  Treasury,  see  Thompson  v.  Pool,  70  Fed.  Rep.  725.] 


118      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

tion  shall  not  be  held  to  affect  the  jurisdiction  of 
the  courts  of  the  United  States  in  cases  commenced 
by  the  United  States  or  by  direction  of  any  officer 
thereof,  or  cases  for  winding  up  the  affairs  of  any 
such  bank." 

Sect.  5.  Expressly  saves  Revised  Statutes,  sec- 
tions 641,  642,  643,  722,  and  Title  24  (as  to  Crimes) 
and  Sect.  8  of  the  Act  of  March  3,  1875,  of  which 
this  act  is  an  amendment,  and  also  the  Act  of 
March  1,   1875,   relating  to  Civil  Rights. 

Sect.  6.  Repeals  the  last  paragraph  of  sect.  5  of 
the  act  of  which  this  is  an  amendment,  and  also 
Revised  Statutes  640,  "and  all  laws  and  parts  of 
laws  in  conflict  with  the  provisions  of  this  act. " 

The  District  in  which  suit  may  be  brought  is 
regulated  in  certain  cases  by  Revised  Statutes,  sec- 
tions 740-742,  which  were  not  repealed  by  the 
present  act.  These  sections  provide:  (1)  that 
when  a  State  contains  more  than  one  District,  every 
suit,  not  of  a  local  nature,  must  be  brought  in  the 
District  where  the  defendant  resides;  (2)  that  in 
suits  of  a  local  nature,  where  the  defendant  resides 
in  a  different  District  from  that  where  the  suit  is 
brought,  but  in  the  same  State,  process  may  be 
served  upon  him  in  his  own  District;  and  (3)  that 
in  a  suit  of  a  local  nature,  when  the  land,  or  other 
subject-matter  lies  partly  in  one  District  and  partly 
in  another,  suit  may  be  brought  in  either  District. 

The  law  upon  this  subject  of  the  jurisdiction  of 
the  Circuit  Courts  has  been  changed  twice  since 
the  lectures  of  Judge  Curtis  were  delivered.  At 
that  time  the  statute  governing  the  jurisdiction 
of  the  Circuit  Courts  was  the  Act  of  1789,  —  the 


THE   CIRCUIT   COUETS.  119 

original  Judiciary  Act.     In  1875  a  new   act  was 
passed,  which  considerably  enlarged  the  jurisdic- 
tion.    Then  came  the  present  act  (that  of  1887- 
1888),  the  object  of  wdiich  was  to  restrict  the  juris- 
diction, and  which  radically  changed  the  statute  of 
1875.     The  present  law  closely  resembles  that  of 
1789.     All   of  these  acts,    and  especially  the  act 
now  in  force,  have  been  the  subject  of  much  litiga- 
tion ;  so  that  the  student,  in  reading  any  case  upon 
the  subject,  should  be  careful  to  note  the  date  of  it, 
and   to   ascertain   under   which    of    these    several 
statutes  it  arose.     It  might  be  well  to  mention  here 
the  chief  differences  between  them.     In  the  Act  of 
1789  the  money  limit  was  $500,  and  it  remained 
the  same  in  the  Act  of  1875;  wdiereas  it  is  now 
$2000.     In  the  Act  of  1789  the  jurisdiction,  except 
when  the  United  States  were  plaintiffs  or  petition- 
ers, depended  entirely  on  citizenship,  the  language 
being  as  follows:  "Of  all  suits  of  a  civil  nature 
at  common  law  and  in  equity,  where  the  matter 
in  dispute    exceeds,    exclusive    of   costs,    the  sum 
or  value  of  $500,  and  the  United  States  are  plain- 
tiffs   or   petitioners;  or   an    alien    is    a    party,    or 
the   suit  is  between  a  citizen  of  the  State  where 
the  suit  is  brought^  and  a  citizen  of  another  State." 
By  the  Act  of  1875,  this  jurisdiction  was  enlarged 
so  as  to  embrace  all  suits  arising  under  the  Con- 
stitution or  laws  of  the  United  States,   regardless 
of  the  citizenship  of  the  parties,  provided  only  that 
the  sum  of  $500   was    involved,    and   the   Act   of 
1875  also  included  all  suits  "in  which  there  shall 
be   a    controversy    between    citizens    of    different 
States." 


120      JUEISDICTION,  PRACTICE,   AND   JURISPRUDENCE. 

Under  the  Act  of  1875,  therefore,  a  suit  of  any 
kind,  which  involved  '$500  or  more,  might  be 
brought  in  any  Circuit  Court  of  the  United  States, 
provided  only  that  it  was  between  citizens  of  dif- 
ferent States.  The  concluding  section  of  the  Act 
of  1875,  that  relating  to  choses  in  action,  also  made 
the  jurisdiction  much  wider  than  it  was  under  the 
Act  of  1789,  and  much  wider  than  it  is  under  the 
Act  of  1888.  These  differences  will  appear  when 
we  come  to  consider  that  section  in  detail. 

It  will  be  observed  that  the  present  statute  con- 
fers jurisdiction  in  the  following  classes  of  cases: 

(a)  cases  where   a    Federal   question   is   involved; 

(b)  cases  where  the  United  States  are  plaintiffs 
or  petitioners ;  (c)  cases  where  citizens  of  the  same 
State  claim  land  under  grants  of  different  States ; 
and  finally  (d)  various  cases  where  the  jurisdiction 
depends  upon  citizenship.  It  is  plain  from  a  care- 
ful reading  of  the  section  that  the  money  limit  does 
not  apply  to  cases  (b)  where  the  United  States  are 
plaintiffs  or  petitioners;  and  there  is  a  decision  to 
this  effect.^  It  might  seem  also  that  it  does  not 
apply  to  those  cases  (c)  where  citizens  of  the  same 
State  claim  lands  under  grants  from  different  States. 
But  there  is  a  later  provision  of  the  same  act  which 
makes  it  probable  that  the  intention  of  Congress 
was  not  to  except  these  cases  from  the  general 
rule.'^ 

Under  this  statute,  therefore,   except  where  the 

1  [United  States  v.  Shaw,  39  Fed.  Rep.  433.  This  constiuctiou 
has  since  been  approved  by  the  Supreme  Court.  See  United  States 
V.  Saiprnrd,  IfiO  U.  S.  403.] 

2  [See  infra,  pp.  189-190  ] 


THE   CIRCUIT   COURTS.  121 

United  States  are  plaintiffs  or  petitioners,  the  Cir- 
cuit Court  cannot  take  jurisdiction  unless  the 
sum  or  value  of  more  than  i|'2000  is  involved.  It 
is  not  necessary  that  more  than  $2000  should  be 
recovered:  a  less  sum  may  have  been  recovered, 
but  the  jurisdiction  attached  if  a  sum  greater  than 
'$2000  was  claimed  by  the  plaintiff,  in  good  faith, 
in  his  declaration  at  law  or  bill  in  equity. ^  If, 
indeed,  it  is  apparent  on  the  plaintiff's  own  show- 
ing, in  his  declaration  or  bill,  that,  even  if  he 
should  prevail,  the  law  could  not  give  him  a  sum 
equal  to  the  jurisdictional  amount,  the  court  will 
not  take  jurisdiction;  but,  on  the  other  hand,  if 
the  sum  recoverable  is  indefinite,  then  the  plaintiff 
may  fix  it  in  his  declaration  or  bill  at  an  amount 
which  it  is  morally  impossible  for  him  to  recover. 
The  distinction  was  admirably  stated  in  a  very  early 
case-  by  Chief  Justice  Ellsworth  as  follows:  — 

"In  an  action  of  debt  on  a  bond  for  XlOO,  the 
principal  and  interest  are  put  in  demand;  and  the 
plaintiff  can  recover  no  more,  though  he  may  lay 
his  damages  at  £10,000.  The  form  of  the  action, 
therefore,  gives  in  that  case  the  legal  rule.  But 
in  an  action  of  trespass,  or  assault  and  battery, 
where  the  law  prescribes  no  limitation  as  to  the 
amount  to  be  recovered,  and  the  plaintiff  has  a 
right  to  estimate  his  damages  at  any  sum,  the 
damage  stated  in  the  declaration  is  the  thing  put 
in  demand,  and  presents  the  only  criterion  to 
which,  from  the  nature  of  the  action,  we  can  resort 
in  settling  the  question  of  jurisdiction.     The  propo- 

1  [Grfene  v.  Liter,  8  Cranch,  229.] 

2  [  Wilson  V.  Daniel,  3  Dall.  401.] 


122      JUEISDICTION,    PKACTICE,    AND    J JKISPRUDENCE. 

sition,  then,  is  simply  this:  where  the  law  gives  no 
rule,  the  demand  of  the  plaintiff  must  furnish  one ; 
but  where  the  law  gives  the  rule,  the  legal  cause  of 
action,  and  not  the  plaintiff's  demand,  must  be 
regarded, " 

And  so  it  is  held  that  the  jurisdiction  attaches, 
if  the  proper  sum  be  claimed,  even  though  it  is 
apparent  on  the  face  of  the  plaintiff's  pleadings 
that  there  is  a  valid  defence  to  his  suit.  "For 
who  can  say,  in  advance,  that  that  defence  will  be 
presented  by  the  defendant,  or,  if  presented,  sus- 
tained by  the  court  ?  "  ^ 

It  was  provided  under  the  old  law,  by  Revised 
Statutes,  sect.  968,  that  when  the  plaintiff  recovered 
less  than  $500,  he  should  not  recover  costs,  and 
that  he  might,  in  the  discretion  of  the  court,  be 
adjudged  to  pay  the  whole  costs.  This  provision, 
not  having  been  repealed  by  the  Act  of  1887-1888, 
is  still  in  force ;  and  the  amount,  $500,  which  was 
the  money  limit  under  the  previous  laws  upon 
this  subject,  cannot,  by  implication,  be  changed 
to  12000.2 

Under  this  statute,  in  civil  cases,  the  defendant 
must  be  a  citizen  of  the  State  and  an  inhabitant  of 
the  District  in  which  the  suit  is  brought,  except  that 
when  the  jurisdiction  depends  on  diverse  citizenship 
the  suit  may  be  brought  in  the  District  of  which 
the  defendant  is  a  resident,  or  of  which  the  plain- 
tiff is  a  resident.^] 

You   are   aware   that,    where   non-residents   are 

1  [Schiml-  V.  M<.line,  c^c.  Co ,  147  U.  S.  500.] 

2  [Eastnmn  v.  Sherrij,  37  Fed.  Kep.  844.] 

8  [AlcCurinick  Co.  V.   Wallhers,  134  U.  S.  41.] 


THE   CIECUIT   COURTS.  123 

sued  in  the  courts  of  the  States,  their  property  may 
be  attached  and  jurisdiction  thus  be  obtained  by  the 
court  over  that  property,  partly  as  a  means  of  com- 
pelling an  appearance  in  the  suit,  or,  if  an  appear- 
ance should  not  be  put  in,  as  a  means  of  exercising 
the  jurisdiction  of  the  court  over  that  property,  and 
proceeding  to  a  sale  of  it,  in  order  to  satisfy  what  is 
the  asserted  demand.  It  is  not  so  in  the  courts  of 
the  United  States.  The  defendant  must  be  [a  resi- 
dent] within  the  district  [except  in  cases  where  the 
jurisdiction  depends  on  diverse  citizenship],  and  per- 
sonal service  must  be  made  upon  him.  It  is  not 
sufficient  that  his  property  can  be  attached,  either 
directly  or  by  means  of  a  foreign  attachment.  This 
has  been  settled  by  a  variety  of  cases,  to  some  of 
which  I  will  refer  you.  The  case  of  Toland  v. 
Sprague,  12  Peters,  300,  is  the  leading  case  on  the 
subject.  Since  the  decision  of  that  case,  the  point 
has  come  up  in  various  shapes  before  the  Circuit 
Courts,  and  one  of  the  cases  is  Bay  v.  The  Newark 
Manufacturing  Company,  1  Blatch.  628;  and  in 
another  form,  the  case  of  Sayles  v.  The  Northwestern 
Insurance  Co.,  2  Curtis's  C.  C.  R.  212. 

You  must  bear  in  mind,  however,  that  although 
it  is  a  requirement  of  the  law  that  a  defendant  [must 
be  sued  in  the  District  wherein  he  resides,  except 
as  aforesaid],  and  personal  service  made  upon 
him,  yet  if  he  voluntarily  appears,  that  waives  the 
objection,  and  the  court  may  then  proceed  against 
him,  exactly  as  if  personal  service  had  been  made. 
That  was  settled  in  the  leading  case  of  Toland  v. 
Sprague,  to  which  I  have  already  given  you  a 
reference. 


124      JUKISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

[This  is  still  the  law.  Jurisdiction  cannot  be 
waived,  but  service  of  process  can  be.  No  consent 
of  parties  can  confer  jurisdiction  upon  the  court.  ^ 
Thus  a  citizen  of  Massachusetts  could  not  be 
sued  in  the  Circuit  Court  for  the  District  of  Massa- 
chusetts, by  a  citizen  of  the  same  State,  — unless 
a  Federal  question  was  at  issue,  —  even  though 
he  accepted  service  of  process,  and  consented  to 
be  sued  there.  But  when  jurisdiction  exists,  be- 
cause a  Federal  question  is  involved,  or  because 
the  plaintiff  and  defendant  are  residents  of  differ- 
ent States,  the  defendant  may  waive  his  personal 
privileo-e  (as  it  is  called)  of  being  sued  in  the 
District  where  he  resides,  or  (if  the  case  depends 
solely  upon  diverse  citizenship)  either  in  the  Dis- 
trict where  he  resides  or  in  that  where  the  plaintiff 
resides,  and  may  consent  to  be  sued  in  any  Dis- 
trict in  any  State.  And  the  defendant  does  waive 
his  privilege  to  be  sued  in  the  District  appointed  by 
the  statute,  if  he  appears  and  contests  the  suit, 
without  objecting  to  the  jurisdiction.  This  objec- 
tion cannot  be  taken  for  the  first  time  when  the 
case  comes  up  on  appeal  to  the  Supreme  Court  or  to 
the  Circuit  Court  of  Appeals.^ 

Although    a   corporation   doing    business    in    a 

1  [The  jurisdiction  of  the  Federal  Courts  is  a  limited  one,  depend- 
ing upon  either  the  existence  of  a  Federal  question  or  diverse  citizen- 
ship of  tlie  parties.  Where  these  elements  of  jurisdiction  are 
wanting,  the  court  cannot  proceed  even  with  the  consent  of  the 
parties.  See  Mansjield,  Coldwater,  c^  Lake  Michigan  Ry.  v.  Swan, 
111   U.  S.  379.] 

2  {St.  Louis  ^c.  R.  R.  Co.  V.  McBride,  141  U.  S.  127  ;  McCormick 
Harvesting  Machine  Co.  v.  Walthers,  134  U.  S.  41 ;  Kansas  City  ^ 
T.  R.  R.  Co.  V.  Interstate  Lumber  Co.,  37  Fed.  Rep.  3 ;  Interior  Con- 
struction ^  Improvement  Co.  v.  Gibney,  160  U.  S.  217.] 


THE   CIECUIT   COUETS.  125 

State  other  than  that  where  it  was  incorporated, 
has  agreed,  in  compliance  with  a  statute  of  the 
State,  that  process  may  be  served  upon  its  agent 
there,  it  is  not  thereby  compelled  to  accept  service 
of  process  in  a  suit  brought  in  the  Circuit  Court  in 
that  State.  The  right  to  be  sued  in  the  District  of 
which  the  corporation  is  a  resident,  and  in  the  State 
wherein  it  was  incorporated,  cannot  be  taken  away 
by  any  State  statute.  ^J 

There  has  been  very  recently  some  enlargement 
made  of  the  authority  of  the  Circuit  Courts  by  an 
act  to  which  I  referred  you  the  other  day,  passed 
on  the  1st  day  of  June,  1872,  in  its  thirteenth 
section. 

[Subsequently  this  act  was  embodied  in  Rev. 
Stat.  sect.  738,  enacted  December  1,  1873.  Later 
the  Act  of  March  3,  1875,  chap.  137,  sect.  8,  repeated 
this  provision,  but  made  a  slight  change  in  it;  aud 
inasmuch  as  the  present  act,  that  of  1887-1888, 
expressly  saved  sect.  8  of  the  Act  of  March  3,  1875, 
that  section  is  still  the  law  upon  the  subject.  It 
runs  as  follows:  "When  in  any  suit,  commenced 
in  anv  Circuit  Court  of  the  United  States,  to  enforce 
any  legal  or  equitable  lien  upon,  or  claim  to,  or  to 
remove  any  encumbrance  or  lien  or  cloud  upon  the 
title  to  real  or  personal  property  within  the  District 
where  such  suit  is  brought,  one  or  more  of  the 
defendants  therein  shall  not  be  an  inhabitant  of  or 
found  within  the  said  District,  or  shall  not  vol- 
untarily appear  thereto,  it  shall  be  lawful  for 
the  court  to  make  an  order  directing  such  absent 
defendant  or  defendants  to  appear,  plead,  answer, 

I  [Southern  Pacific  Co.  \.  Denton,  146  U.  S.  202.] 


126      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

or  demur,  by  a  day  certain  to  be  designated,  which 
order  shall  be  served  on  such  absent  defendant  or 
defendants,  if  practicable,  wherever  found,  and  also 
upon  the  person  or  persons  in  possession  or  charge 
of  said  property,  if  any  there  be;  or  where  such 
personal  service  upon  such  absent  defendant  or 
defendants  is  not  practicable,  such  order  shall  be 
published  in  such  manner  as  the  court  may  direct, 
not  less  than  once  a  week  for  six  successive  weeks ; 
and  in  case  such  absent  defendant  shall  not  appear, 
plead,  answer,  or  demur,  within  the  time  so  limited, 
or  within  some  further  time,  to  be  allowed  by  the 
court,  in  its  discretion,  and  upon  proof  of  the  ser- 
vice or  publication  of  said  order,  and  of  the  per- 
formance of  the  directions  contained  in  the  same,  it 
shall  be  lawful  for  the  court  to  entertain  jurisdic- 
tion, and  proceed  to  the  hearing  and  adjudication 
of  such  suit  in  the  same  manner  as  if  such  absent 
defendant  had  been  served  with  process  within  the 
said  District;  but  said  adjudication  shall,  as  regards 
said  absent  defendant  or  defendants  without  appear- 
ance, affect  only  the  property  which  shall  have 
been  the  subject  of  the  suit  and  under  the  jurisdic- 
tion of  the  court  therein,  within  such  District."^ 
(Then  follows  a  provision  that  the  matter  may  be 
opened,  within  one  year,  by  any  absent  defendant 
who  did  not  receive  personal  notice.) 

It  has  been  held  that  this  section,  being  saved  by 
the  Act  of  1887-1888,  is  not  affected  by  the  pro- 
visions of  that  act  in  regard  to  the  District  in  which 
suit  must  be  brought,  and  consequently  that  non- 
resident defendants  can  still  be  sued,  under  this 

'   [18  Stat.  472.] 


THE   CIRCUIT   COURTS.  127 

section,  although  the  suit  is  brought  neither  in  the 
district  of  the  plaintiff  nor  of  the  defendant.  ^  It 
has  also  been  held  that  suit  may  be  In-onght  under 
this  section,  although  there  is  only  one  defendant, 
and  he  is  absent.^] 

The  substance  of  that  [section]  is,  that  where 
real  or  personal  property  is  within  the  territorial 
jurisdiction  of  the  court,  and  a  third  person  claims 
some  right,  either  to  the  property  itself,  or  to  a 
lien  on  it,  or  some  interest  in  it,  he  may  have  that 
title  adjudicated  upon  by  the  Circuit  Court  within 
whose  territorial  jurisdiction  the  property  is,  by 
means  of  a  notice  given  to  the  person  in  the  manner 
here  provided,  although  that  person  is  not  even 
within  the  District,  and  cannot  be  served  with  what 
can  be  called  a  process  of  court;  because  such  a 
notice  as  is  here  provided  for  is  not  a  process  of  the 
court,  but  is  merely  a  means  of  giving  him  notice 
that  he  may  appear  if  he  wishes  to.  This  is  an 
important  extension  of  the  authority  of  the  court 
especially  in  those  States  where  questions  con- 
stantly arise  in  regard  to  real  property ;  it  is  more 
important  there  than  in  the  Eastern  States,  where 
questions  of  title  to  real  property  are  comparatively 
of  infrequent  occurrence.^ 

In  regard  to  the  judges  who  are  to  constitute 
this  court;  originally  they  were  the  judges  of  the 
Supreme  Court  and  of  the  District  Court.     A  Judge 

1  {Greeley  v.  Lowe,  155  U.  S.  58.] 

2  [Dick  V.  Foraker,  155  U.  S.  404.] 

3  See  Ober  v.  Gallurjher,  93  U.  S.  199.  Where  part  of  the  prop- 
erty is  out  of  the  State,  see  Muller  v.  Dows,  94  U.  S.  444.  See  also 
McBurney  v.  Carson,  99  U.  S.  567. 


128      JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

of  the  Circuit  Court,  in  all  modern  times,  has  been 
either  the  Chief  Justice  or  one  of  the  Associate 
Justices  of  the  Supreme  Court  of  the  United  States, 
holding  the  Circuit  Court  by  virtue  of  the  authority 
conferred  upon  him  by  Congress  for  that  purpose; 
and  the  Judge  of  the  District  Court  is  also  empow- 
ered to  preside  over  the  Circuit  Court  in  the  Dis- 
trict where  his  District  Court  is  held,  or  in  other 
Districts  of  the  same  Circuit,  on  the  designation  of 
that  Judge  of  the  Supreme  Court  assigned  to  that 
Circuit.  1  There  has  now  been  added  another  class 
of  judges,  called  Circuit  Court  Judges. ^  They  are 
judges  appointed  for  each  Circuit,  the  entire  United 
States  being  divided  into  nine  Circuits,  and  nine 
Circuit  Court  Judges  have  been  appointed  under  a 
recent  law  of  Congress,  and  each  of  these  Circuit 
Judges  has  power  to  hold  the  Circuit  Court  alone, 
just  as  the  Supreme  Court  Judge  or  District  Judge 
has  power  to  hold  a  court  alone ;  or  any  two  of  them 
may  sit  together ;  no  more  than  two  can  sit  together, 
but  any  two,  a  Judge  of  the  Supreme  Court  and  a 
District  Judge  may  sit  together,  or  a  Judge  of  the 
Supreme  Court  and  a  Circuit  Judge  may  sit  together, 
or  a  Circuit  Judge  and  a  District  Judge  may  sit 
together,  and  each  of  them  is  competent  to  hold 
court  alone.  That,  so  to  speak,  is  the  personnel  by 
which  these  Circuit  Courts  are  constituted  through- 
out the  country.^ 

1  [There  is  one  District  Judge  for  each  District,  except  that  in 
a  few  cases,  a  District  Judge  acts  for  two  Districts  in  a  State.] 

2  [This  was  done  in  18G9.  By  the  Act  of  1891,  an  additional  Cir- 
cuit Judge  was  provided  for  each  Circuit.  In  four  Circuits  —  namely, 
the  2d,  7th,  8th,  and  9th  —  there  are  now  three  Circuit  Judges.  In  aU 
the  otiiers  there  arc  two.] 

8  llevised  Statutes,  Chap.  6,  Title  XIII. 


THE   CIKCUIT   COURTS.  129 

The  next  subject  of  inquiry  is,  ^vhat  parts  of  the 
judicial  power  of  the  United  States  do  these  courts 
exercise,  —  what  is  their  jurisdiction,  in  other 
words.  That  is  distributable  into  two  distinct 
parts:  first,  that  which  arises  from  the  character 
of  the  parties,  and,  second,  that  which  depends 
upon  the  subject-matter  involved  in  the  suit.  I 
think  it  proper  to  premise  here,  that  although  this 
is  only  a  limited  jurisdiction, — limited  first  by 
the  character  of  the  parties,  and  secondly  by  the 
nature  of  the  subject-matter  involved  in  the  suit, 
—  still,  any  party  who  has  a  right  to  come  into  the 
Circuit  Court  of  the  United  States  finds  a  court 
clothed  with  entire  power  to  do  justice  according 
to  law,  or  according  to  equity,  whichever  he  appeals 
to.  Although  this  is  a  court  of  limited  jurisdic- 
tion, the  limits  of  its  jurisdiction  are  limits  which 
affect  the  persons  who  may  come  there,  or  the  sub- 
jects which  may  be  brought  there;  but  when  a 
person  has  a  right  to  come  there,  or  the  subject  is 
one  which  can  be  brought  there  under  the  Constitu- 
tion and  laws  of  the  United  States,  the  court  has 
entire  power,  as  a  court  of  equity  or  as  a  court  of 
law,  to  do  justice  between  the  parties.  It  is  not  a 
court  of  limited  jurisdiction  in  any  other  sense 
than  that  which  I  have  now  explained.^  To  what 
parties,  then,  by  reason  of  their  character,  does  the 
jurisdiction  of  the  Circuit  Courts  extend  ?  .   .   . 

The  first  thing  to  be  mentioned  is,  that  where 
the  United  States  are  plaintiffs  or  petitioners, 
either  at  law  or  in  equity,  the  Circuit  Court  has 
jurisdiction.     That  has  been  still  further  extended 

1  Gaines  v.  Fuentes,  92  U.  S.  10  ;  Durhank  v.  Biijelow,  lb.  179. 

9 


130      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

by  an  Act  of  Congress,  passed  on  the  3d  of  March, 
1815,  §  4,  found  in  3  Statutes  at  Large,  245 :  — 

"That  the  District  Court  of  the  United  States 
shall  have  cognizance  concurrent  with  the  courts 
and  magistrates  of  the  several  States,  and  the  Cir- 
cuit Courts  of  the  United  States,  of  all  suits  at 
common  law  where  the  United  States  or  any  officer 
thereof, under  the  authority  of  any  Act  of  Congress, 
shall  sue,  although  the  debt,  claim,  or  other  matter 
in  dispute,  shall  not  amount  to  one  hundred  dollars. " 

This  is  a  very  clumsily  drawn  section.  It  seems 
to  assume  that  the  Circuit  Courts  already  had  juris- 
diction, and  that  Congress  was  to  confer  on  the 
District  Court  a  jurisdiction  concurrent  with  that 
which  the  Circuit  Courts  before  had.  And  in  con- 
sequence of  that,  when  the  Postmaster-General 
brought  an  action  upon  a  bond,  given  to  him  in  his 
official  capacity,  it  was  insisted  that  that  act  did 
not  confer  any  jurisdiction  on  the  Circuit  Court, 
but  merely  assumed  that  they  already  had  jurisdic- 
tion, and  that  Congress  had  made  a  mistake  in  that 
particular.  Well,  as  might  naturally  be  supposed, 
the  Supreme  Court  overruled  this  objection,  in  a 
case  reported  in  12  Wheaton,  ]36,i  where  they 
held,  that,  although  Congress  could  not  declare 
what  the  law  was  in  the  past,  they  could  show  whnt 
they  expected  and  intended  it  to  be  in  the  future, 
although  they  did  not  expressly  say  so;  that  "con- 
current jurisdiction  with  the  District  Court"  meant 
that  the  Circuit  Court  should  have  the  same  juris- 
diction, otherwise  it  could  not  be  concurrent;  and 
that  the  Postmaster-General,    as  an  officer  of  the 

1  Postmaster- General  v.  Early. 


THE   CIRCUIT   COURTS.  131 

United  states,  might  bring  the  suit.  This,  as  you 
perceive,  is  some  extension  of  the  Judiciary  Act; 
but  I  believe  no  one  questions  that  where  an  officer 
of  the  United  States,  in  his  ofhcial  capacity,  brings 
a  suit  in  behalf  of  the  United  States,  the  provision 
of  the  Constitution  which  requires  the  United  States 
to  be  a  party  is  sufficiently  satisfied.^ 

The  next  clause  to  be  noticed  is,  that  this  act 
[the  Judiciary  Act  of  1789]  says,  "where  an  alien 
is  a  party.  "2  Well,  the  Constitution  does  not  say 
so.  The  Constitution  says  that  the  judicial  power 
shall  extend  to  suits  between  citizens  of  a  State  and 
citizens  or  subjects  of  a  foreign  state.  It  is  not 
enough,  therefore,  to  satisfy  the  Constitution,  that 
an  alien  is  a  party,  —  a  citizen  must  be  the  other 
party ;  and  accordingly,  it  was  held  in  the  case  of 
Hodgson  v.  Boiverbank,  5  C ranch,  303,  where  the 
averment  merely  was  that  the  plaintiff  was  an  alien, 
not  saying  anything  concerning  the  character  of 
the  defendant,  that  the  suit  could  not  be  main- 
tained. Not  only  must  an  alien  be  a  party,  but  a 
citizen  must  be  the  other  party.  ^ 

1  These  ambiguities  are  now  removed  by  the  Revised  Statutes. 
§563,  sub-division  4,  gives  the  District  Courts  jurisdiction  "of  all 
suits  at  common  law  brought  by  the  United  States,  or  by  any  officer 
thereof,  authorized  by  law  to  sue."  See  the  case  of  Lewis,  Trustee, 
V.  The  United  States,  92  U.  S.  618. 

2  [In  the  present  act  (that  of  1887-1888)  the  language  is  "a 
controversy  between  citizens  of  a  State  and  foreign  States,  citizens 
or  subjects,  in  which  the  matter  in  di.spute,"  etc.,  following  the 
Constitution.] 

3  Judge  Curtis  was  speaking  here  of  the  eleventh  section  of  the 
Judiciary  Act  of  1789.  The  same  phraseology  is  repeated  in  §  629 
of  the  Revised  Statutes,  and  with  the  same  ambiguity.  The  mean- 
ing is,  that,  where  an  alien  is  a  party,  a  citizen  of  some  State  must 
be  the  other  party. 


132      JURISDICTION,   PEACTICE,    AND    JUEISPRUDENCE, 

There  are  several  more  recent  cases,  in  which 
the  same  doctrine  was  affirmed;  one  is  in  16 
Howard,  104,  ^  to  which  it  would  not  have  been 
necessary  for  me  to  refer  you,  were  it  not  proper  to 
call  your  attention  to  what  is  a  plain  mistake,  and 
which  might  perhaps  mislead.  It  is  at  the  very 
close  of  the  opinion.  "The  Constitution,"  the 
judge  says,  "which  is  the  superior  law,  defines  the 
jurisdiction  to  be  '  between  citizens  of  a  State,  and 
foreign  States,  citizens,  or  subjects.'"  Then  fol- 
lows this:  "And  although  it  has  been  decided 
{Maso7i  V.  The  Blaireau,  2  Cranch,  264)  that  the 
courts  of  the  United  States  will  entertain  jurisdic- 
tion where  all  the  parties  are  aliens,  if  none  of 
them  object,  yet  it  does  not  appear  in  this  case  that 
the  defendant  is  an  alien."  The  judge  overlooked 
the  fact,  the  decisive  fact,  that  the  case  of  3Iason 
V.  The  Blaireau  was  a  suit  in  admiralty  to  recover 
salvage  compensation,  not  depending  at  all  upon 
the  character  of  the  parties,  and  that  the  doubt 
which  arose  in  that  case  in  regard  to  entertaining 
the  suit,  because  the  parties  were  aliens,  was  a 
doubt  which  has  been  from  time  to  time  expressed 
in  courts  of  admiralty,  —  whether  the  admiralty 
court  of  a  nation  could  entertain  jurisdiction  where 
all  the  parties  in  interest  were  subjects  of  another 
State  or  nation,  as  a  matter  of  comity  and  propriety, 
but  not  at  all  as  a  question  of  jurisdiction.  I  men- 
tion this,  because  otherwise  you  might  from  that 
case  take  the  impression  that  the  Supreme  Court 
had  decided  that,  where  the  jurisdiction  depended 
upon  the  character  of  the  parties,  they  could  enter- 

1  Piquignot  v.  Pennsijlvania  Railroad  Company, 


THE   CIRCUIT   COURTS.  133 

tain  a  suit  with  aliens  on  both  sides,  if  no  objection 
was  made,  which,  I  take  it,  has  never  been  decided, 
and  probably  never  will  be.^ 

The  next  clause  in  this  section  material  to  be 
noticed  is,  that  the  court  has  jurisdiction  over  suits 
between  a  citizen  of  the  State  where  the  suit  is 
brought,  and  a  citizen  of  another  State,  ^  Of  course, 
it  is  to  be  read  in  the  plural  as  well  as  in  the  singu- 
lar; that  is,  between  a  citizen  or  citizens  of  a  State 
where  the  suit  is  brought,  and  a  citizen  or  citizens  of 
another  State.  But  nevertheless,  under  this  eleventh 
section  of  the  Judiciary  Act,  it  is  necessary  that 
each  one  of  the  parties  plaintiff  shall  be  competent  to 
sue  each  one  of  the  parties  defendant.  A  citizen 
of  Massachusetts  is  competent  to  sue,  in  the  Circuit 
Court  of  Massachusetts  or  New  York,  a  citizen  of 
New  York.  He  is  not  competent  to  sue  a  citizen 
of  New  York  and  a  citizen  of  Massachusetts,  because 
of  the  rule  I  have  already  stated.  Every  plaintiff, 
supposing  him  to  be  the  sole  plaintiff,  must  be 
competent  to  sue  every  defendant,  supposing  him  to 
be  the  sole  defendant;  and  if  any  one  of  the  plain- 
tiffs is  not  -competent  to  sue  a  defendant,  or  if  any 
one  of  the  defendants  could  not  bo  sued  under  this 
jurisdiction  by  those  plaintiffs,  then  the  suit  under 
this  eleventh  section  cannot  be  maintained.  You 
will  find  this  laid  down,  and  well  explained,  in  the 
case  of  Coal  Company  v.  Blatchford,  11  Wallace, 
172.3     The  Constitution  is  much  broader  than  this. 

1  The  law  is  settled  otherwise.     4  Cranch,  46  ;  2  Peters,  13fi,  556. 

2  [The  language  of  the  present  Act  is,  "  a  controversy  between 
citizens  of  different  States,  in  which  the  matter  in  dispute,"  etc  ] 

^  See   the  case  of  The  Sewing  Machine  Companies,    18   Wallace, 
553.     [See  also  Blake  v.  McKim,  103  U.  S.  336 ;  Removal  Cases,  100 


134      JUmSDICTION,   PRACTICE,   AND    JUKISPRUDENCE. 

The  Constitution  says :  "  The  judicial  power  shall 
extend  to  all  cases  "  (describing  now  cases  depend- 
ing upon  the  subject-matter)  "and  controversies 
between  two  or  more  States,  between  a  State  and 
citizens  of  another  State,  and  between  citizens  of 
different  States."  All  the  Constitution  demands 
is,  that  the  parties  to  the  suit  shall  be  citizens  of 
different  States;  that  on  one  side  they  shall  be 
citizens  of  one  State,  and  on  the  other  side  they 
shall  be  citizens  of  some  other  State;  but  this 
eleventh  section  requires  that  on  one  side  they  shall 
be  citizens  of  the  State  in  which  the  suit  is  brought, 
which  is  an  additional  requirement,  and,  on  the 
other  side,  citizens  of  another  State.  ^ 

It  was  contended,  formerly,  that  there  was  an 
absolute  duty  incumbent  upon  Congress,  to  which 
the  Judiciary  Act  gave  effect,  to  vest  the  whole  of 
this  judicial  authority  in  some  court  or  courts  of 
the  United  States.  It  is,  however,  now  perfectly 
well  settled,  that,  whether  this  be  a  duty  incumbent 
upon  Congress  or  not,  it  is  a  duty  of  imperfect 
application ;  and  one  which  the  courts  of  the  United 
States  cannot  enforce.  Power  is  given  to  Congress 
"  to  create  such  inferior  courts  "  (inferior  to  the 
Supreme  Court)  "as  from  time  to  time  they  shall 
ordain  and  establish."  Of  course,  when  they 
create  a  court,  they  confer  upon  it  its  jurisdiction, 

U.  S.  457;  Benitinfjer  Srlf  Addhfj  Cash  Register  Co.  v.  Nat'wnal  Cash 
Register  Co.,  42  Fori.  Eep.  81  ;  Smith  v.  Li/on,  133  U.  S.  315.1 

1  This  requirement  is  repeated  in  §  629  of  the  Revised  Statutes. 
[A  State  is  not  a  citizen.  Therefore  a  suit  between  a  State  and 
citizens  of  another  State  is  not  a  controversy  between  citizens  of  dif- 
ferent States  ;  and  the  Circuit  Court  hns  no  jurisdiction  over  it  unless 
it  involves  a  Federal  question.  Postal  Telegraph  Cable  Co.  v. 
Ahihinna,  155  U.  S.  482.] 


THE   CIRCUIT   COURTS.  135 

and,  unless  they  confer  the  whole  jurisdiction  which 
the  Constitution  enables  them  to  do,  those  courts 
must  have  a  lesser  jurisdiction ;  and  therefore  the 
Supreme  Court  have  decided,  in  the  case  of  Cary  v. 
Curtis,  3  Howard,  245,  that  all  the  courts  of  the 
United  States  can  look  to  is,  not  what  Congress 
ought  to  have  done,  but  what  it  has  done.  If  it  has 
conferred  jurisdiction,  they  can  exercise  it.  If  it 
has  not,  Ihcy  cannot  exercise  it.  And  the  same 
law  had  been  in  substance  previously  laid  down  in 
Kendall  v.   United  States,  12  Peters,  616. 

Congress  has,  however,  by  a  more  recent  act, 
passed  on  the  28th  of  February,  1839,  found  in  5 
Statutes  at  Large,  321,  conferred  a  broader  juris- 
diction on  the  Circuit  Courts,  having  regard  to  the 
character  of  the  parties.  It  is  the  first  section  of 
that  act:  — 

"  That  when  there  are  several  defendants  in  any 
suit  at  law  or  in  equity,  and  one  or  more  of  them 
are  neither  inhabitants  of  nor  found  within  the  dis- 
trict in  which  the  suit  is  brought,  and  do  not  volun- 
tarily appear,  the  court  may  entertain  jurisdiction, 
and  proceed  to  the  trial  and  adjudication  of  the  suit 
between  the  parties  who  ai-e  properly  before  it; 
but  the  judgment  or  decree  rendered  therein  shall 
not  conclude  or  prejudice  other  parties,  not  regu- 
larly served  with  process,  nor  voluntarily  appearing 
to  answer ;  and  non-joinder  of  parties  who  are  not 
inhabitants  of  nor  found  within  the  district  as 
aforesaid,  shall  not  constitute  matter  of  abatement 
or  objection  to  the  suit. "  ^ 

1  [This  was  re-enaoted  in  §  737  of  the  Eevised  Statutes,  the  lan- 
guage of  which  is  given  in  the  text.     It  might  he  argued  that  this 


136      JURISDICTION,   PKACTICE,   AND   JURISPRUDENCE. 

That  statute  has  been  twice  before  the  Supreme 
Court,  and  in  the  last  case  in  which  it  came  there, 
—  Jones  V.  Andrews,  10  Wallace,  327,  — they  held, 
that  although  this  language  does  not  point  directly 
to  anything  except  a  failure  to  serve  notice,  never- 
theless it  was  the  intention  of  Congress  to  make  it 
co-extensive  with  the  terms  of  the  Constitution,  and 
that  parties  who  were  not  citizens  of  the  State 
where  the  suit  was  brought  might  nevertheless,  if 
they  chose,  voluntarily  come  in,  and  have  their 
rights  adjudicated  under  this  section.  That,  you 
perceive,  is  an  extension  of  the  eleventh  section  of 
the  Judiciary  Act  to  cases  which  that  eleventh  sec- 
tion would  not  have  included;  so  that  now,  if  a  suit 
should  be  brought  by  a  citizen  of  Massachusetts 
against  two  citizens  of  two  different  States,  and 
service  made  on  one  of  them,  because  he  was  found 
there,  and  no  service  made  on  the  other,  but  the 
other  chose  voluntarily  to  come  in,  although  the 
court  could  not  entertain  jurisdiction  under  that 
eleventh  section,  they  can  entertain  it  under  the 
third  section  of  this  Act  of  1839.     The  same  act 

section  was  repealed  by  the  Act  of  1887-1888,  but  the  contrary  seems 
to  have  been  taken  for  granted  in  the  following  cases  where  tlie  sec- 
tion was  applied:  Gross  v.  Geo.  W.  Scott  M[fi]  Co.,  48  Fed.  Kep. 
35;  Collins  M'fg  Co.  v.  Ferguson,  54  Fed.  Rep.  721.  Tliis  section 
is  re-enforced  by  Eqnity  Rule  No.  47,  as  follows:  "In  all  cases 
wlierc  it  shall  appear  to  the  court  that  persons,  who  might  otlierwise 
lie  deemed  necessary  or  proper  parties  to  tlie  suit,  cannot  be  made 
parties  by  reason  of  their  being  out  of  the  jurisdiction  of  the  court, 
i)r  incapable  otherwise  of  being  made  parties,  or  because  tlieir 
j')inder  would  oust  the  jurisdiction  of  the  court  as  to  the  parties  before 
the  court,  the  court  may,  in  their  discretion,  proceed  in  tlie  cause 
without  making  such  persons  parties ;  and  in  such  case  tlie  decree 
shall  be  without  prejudice  to  the  rights  of  the  absent  parties  "J 


THE   CIRCUIT   COURTS.  137 

had  come  before  the  court  previously,  in  a  case 
reported  in  17  Howard,  141,^  not  in  this  aspect  of 
it,  as  an  extension  of  the  eleventh  section  of  the 
Judiciary  Act  to  other  parties,  hut  in  reference  to 
other  points,  and  it  is  an  important  case  for  you  to 
look  at.  The  court  there  held  that  they  can  make 
no  decree  affecting  the  interest  of  any  absent  party, 
although  that  absent  party  might  have  been  a  compe- 
tent party  if  he  could  have  been  served,  or  might  be  a 
competent  party  if  he  chose  to  come  in  voluntarily ; 
but  in  the  absence  of  a  party  whose  interests  will 
be  affected  by  the  decree,  they  cannot  make  any 
decree  affecting  his  interests,  and,  if  they  can  make 
no  decree  at  all  without  affecting  his  interests,  then 
they  can  make  no  decree. 

There  are  a  great  many  cases  in  equity  where  it 
is  proper  to  make  persons  parties,  but  where  they 
are,  after  all,  merely  formal  parties ;  no  decree  is 
sought  against  them.  It  is  proper  to  make  them 
parties,  because,  from  their  relation  to  the  subject- 
matter  of  the  suit,  they  may  be  supposed  to  have 
knowledge  and  to  be  capable  of  assisting  in  the 
elucidation  of  the  subject  of  the  suit,  although  they 
are  not  necessary  parties ;  and  the  courts  have  held 
that  they  will  take  jurisdiction  in  the  absence  of 
such  merel}^  formal  parties.^ 

The  inquiry  arises,  under  this  clause  of  the 
eleventh  section.  What  is  a  citizen  ?  Who  is  a 
citizen  of  Massachusetts,  or  of  any  other  State  ? 
And  it  is  well  settled  that  a  citizen,  judicially,  is 

1  Shields  V.  Barrow. 

-  [This  paragraph  has  been  transferred  from  the  succeeding  lec- 
ture to  this  place.) 


138      JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

one  who  is  a  citizen  of  the  United  States,  either 
native  or  naturalized,  and  domiciled  in  a  particular 
State.  Any  person  who  is  a  native  or  a  naturalized 
citizen  of  the  United  States,  and  who  has  a  domi- 
cile in  Massachusetts,  is  a  citizen  of  Massachusetts, 
and  so  of  the  other  States.  This  provision,  how- 
ever, it  has  been  held,  does  not  include  those 
citizens  of  the  United  States  who  are  domiciled  in 
the  District  of  Columbia,  or  in  the  Territories. 
That  was  decided  in  the  case  of  New  Orleans  v. 
Winter,  1  Wheaton,  91.  It  is  citizens  of  the  States 
only  whose  rights  are  provided  for  under  the  Consti- 
tution and  the  Acts  of  Congress  giving  jurisdiction 
to  the  Circuit  Courts. 

It  must  very  often  happen,  that  suits  are  brought 
by  persons  who  act  in  a  representative  capacity,  as 
executors,  or  administrators,  or  guardians,  or 
trustees.  It  is  settled  that  evidence  that  they  act 
in  a  representative  capacity,  and  that  those  whom 
they  represent  would  not  be  competent  of  them- 
selves to  sue,  does  not  affect  the  jurisdiction  of  the 
court.  If  an  executor  is  a  citizen  of  the  State  of 
Massachusetts,  although  every  person  whom  he 
represents  is  a  citizen  of  some  other  State,  he  may 
sue  as  a  citizen  of  Massachusetts.  That  was  held 
quite  recently.  It  had  boon  held  before,  but  I  will 
give  you  the  last  decision  on  the  subject:  11 
Wallace,  172.  ^     On  the  other  hand,  if  a  person  is 

1  Cnal  Comjianij  v.  Blatchford.  See  13  Wallace,  66,  where  it  was 
hold  that  an  administrator,  l)eing  at  the  time  of  his  appointment  a 
citizen  of  tlie  same  State  as  liis  decedent  and  the  defendant,  and 
afterwards  removiug  into  another  State,  may  sue  as  administrator  in 
a  Federal  court.     [See  also  Lamar  v.  Micuu,  112  U.  S.  452.] 


THE   CIRCUIT   COURTS.  130 

not  acting  strictly  in  a  representative  capacity,  as 
an  executor,  administrator,  guardian,  or  trustee, 
but  is  what  is  called  a  mere  conduit,  through  which 
the  money  or  property  sued  for  is  to  pass  to  a  third 
person,  that  third  person  may  bring  the  suit,  and, 
if  he  is  competent  as  a  citizen  to  bring  it,  it  is  of 
no  consequence  if  this  other  person,  to  whom  the 
promise  was  in  form  made,  would  not  be  competent 
to  sue.  As,  for  instance,  there  are  a  great  number 
of  cases  in  which  public  ofticers  are  required  to 
take  bonds  for  the  use  of  a  particular  party  in 
interest ;  sometimes  a  sheriff,  sometimes  judges  of 
probate,  etc.,  in  various  States.  There  are  a  great 
many  instances  of  that  kind,  where  bonds  are  taken 
by  a  public  officer,  but  where  the  public  officer  has 
no  interest  whatever  in  the  matter,  but  the  private 
party  for  whose  benefit  the  bond  is  taken  is  incapv 
able,  under  the  local  law,  of  bringing  a  suit.  Now, 
wherever  a  private  party  is  capable  of  bringing  a 
suit  by  force  of  the  local  law,  it  is  treated  as  his 
right,  and  the  other  party  to  whom  the  promise  is 
made  is  a  mere  conduit,  through  whom  this  right 
passes  to  the  beneficiary.  ^ 

I  would  mention  also,  in  this  connection,  that, 
when  the  jurisdiction  has  once  attached,  it  is  not 
defeated  by  any  change,  either  in  the  domicile  of 
the  party  who  has  brought  the  suit,  or  by  his  decease 
and  the  coming  in  of  an  executor  or  administrator 

1  The  Circuit  Court  has  jurisdiction,  under  the  eleventh  section 
of  the  Judiciary  Act,  of  a  suit  in  the  name  of  the  Governor  of  a  State, 
on  a  sheriff's  hond  to  the  Governor,  if  the  parties  beneficially  inter- 
ested in  the  suit  be  citizens  of  another  State,  and  competent  to  sue 
the  defendant.  McNutt  v.  Bland,  2  Howard,  9.  See  also  Browne  v- 
Strode,  5  Cranch,  303. 


140      JURISDICTION,    PRACTICE,    AND    JURISPRUDENCE. 

who  would  not  have  been  capable  of  suing.  As, 
for  instance,  a  citizen  of  Massachusetts  brings  a 
suit  in  the  Circuit  Court  of  Massachusetts  against 
a  citizen  of  Rhode  Island,  and  after  the  suit  is 
brought,  while  it  is  pending  in  court,  the  citizen  of 
Massachusetts  moves  to  Rhode  Island;  that  does 
not  defeat  the  jurisdiction.  A  court  having  com- 
petent jurisdiction  over  the  suit  does  not  lose  it  by 
a  change  in  the  citizenship  of  the  party.  Instead 
of  that,  suppose  the  citizen  of  Massachusetts  who 
brings  the  suit  dies,  and  a  citizen  of  Rhode  Island 
is  his  executor  or  administrator;  still,  it  is  held 
that  the  suit  is  prosecuted  by  him  under  the  juris- 
diction which  the  court  originally  obtained,  and 
which  is  not  defeated  by  this  change  which  has 
taken  place  by  the  death  of  the  party.  These  two 
points  have  been  settled  by  the  case  of  Morgan  v. 
Morgan^  2  Wheaton,  290,  and  the  case  of  Clarke  v. 
Mathewson,  12  Peters,  164;  and  these  principles 
are  just  as  applicable  to  any  other  change  of  parties 
as  to  that  which  occurs  in  the  case  of  removal  or 
death.  They  are  applicable  where,  owing  to  a 
change  of  interest  or  from  other  circumstances, 
parties  have  come  in  to  succeed  to  the  property  which 
was  brought  under  the  jurisdiction  of  the  court  by 
a  proper  proceeding  originally,  and  no  change  will 
defeat  the  jurisdiction.  This  was  decided  in  the 
case  of  Dunn  v.    Clarke,    8  Peters,   1. 

There  are  two  other  cases  which  show  that  other 
changes  than  those  which  I  have  mentioned  will 
not  defeat  the  jurisdiction  when  once  it  is  pos- 
sessed ;  the  cases  of  Freeman  v.  Howe,  24  Howard, 
450,    and    Hujf  v.    HutcJdnson,    14   Howard,   586. 


THE   CIKCUIT   COURTS.  141 

The  case  of  Freeman  v.  Howe  is  one  which  pushes 
the  jurisdiction,  perhaps  not  too  far,  but  to  a  great 
extent,  where  the  court  held  that,  when  a  marshal 
had  attached  property  under  a  process  from  the 
Circuit  Court,  an  action  of  replevin  would  not  lie 
to  take  the  property  out  of  the  hands  of  the  mar- 
shal, because  it  was  in  the  custody  of  the  law  under 
that  court.  The  difficulty  which  was  suggested 
was,  "There  can  be  no  litigation  between  a  marshal 
who  is  a  citizen  of  Massachusetts,  and  the  claimant 
of  this  property,  the  plaintiff  in  replevin,  who  is 
also  a  citizen  of  Massachusetts ; "  to  which  the 
court  responded:  "Yes,  there  can  be.  A  court 
having  jurisdiction,  and  having  extended  its  juris- 
diction over  this  property,  these  parties  may  try  the 
title  as  the  court  shall  direct,  under  a  petition,  or 
by  any  other  proper  form  of  proceeding."  And 
therefore  the  jurisdiction  of  the  State  court  by 
replevin  was  denied.  They  have,  however,  since 
held,  —  and  I  may  mention  it  in  this  connection, 
. —  that  although  the  property  cannot  be  taken  out 
of  the  hands  of  the  marshal  by  a  writ  of  replevin, 
an  action  of  trespass  or  trover  will  lie  against  him 
for  the  tort. 

The  citizenship  necessary  to  give  jurisdiction  to 
the  court  must  be  averred  on  the  record;  and  a 
failure  to  make  this  averment  is  fatal,  at  any  stage 
of  the  case,    to   the  jurisdiction.  ^     That  has   fre- 

1  [When  non-residents  are  improperly  joined  as  defendants  with 
residents,  they  only,  and  not  the  resident  defendants,  can  object  to 
the  jurisdiction.  Smith  v.  Atchison  ^-c.  R.  R.  Co.,  64  Fed.  Kep.  1, 
But  see  an  intimation  to  the  contrary  in  Interior  Construction  Sfc.  Co. 
V.  Gibney,  160  U.  S.  217.] 


142      JURISDICTIOX,   PRACTICE,   AND   JURISPRUDENCE. 

qiiently  been  decided ;  but  I  will  refer  you  only  to  the 
leading  case  of  Montalet  v.  Murray^  4  Cranch,  46.  i 

The  usual  form  in  which  the  averment  is  made 
in  ordinary  practice  in  an  action  at  law  is  to  say 
that  A.  B.,  a  citizen  of  the  State  of  Massachusetts, 
is  summoned  to  answer  to  CD.,  a  citizen  of  the 
State  of  Rhode  Island.  That  is  the  usual  mode  of 
making  the  averment  on  the  record,  and  that,  or 
something  equivalent  to  it,  is  necessary  in  all  cases. 
In  a  suit  in  equity,  the  usual  mode  is  derived  from 
the  form  of  the  commencement  of  such  a  bill  pre- 
scribed by  the  rules  of  the  Supreme  Court  for  the 
practice  -of  the  Circuit  Courts.  That  form  is 
this :  — 

A.  B.,  a  citizen  of  the  State  of  Massachusetts, 
brings  this  his  bill  in  equity  against  C.  D.,  a  citizen 
of  the  State  of  Rhode  Island.  The  averment  as  to 
the  citizenship  is  usually  inserted  in  that  form,  at 
the  commencement  of  the  bill,  and  that  is  the 
proper  mode  of  doing  it.  Nevertheless,  there  is  no 
particular  form  required  by  law  in  order  to  found 
the  jurisdiction.  If  it  appears  in  any  way  on  the 
face  of  the  record,  sufficiently  and  satisfactorily, 
that  the  parties  on  one  side,  by  reason  of  their 
citizenship,  are  capable  of  suing  the  parties  on  the 
other  side,  by  reason  of  their  citizenship,  that  is 
sufficient.  You  will  fmd  this  to  have  been  held  in 
the  case  of  Jones  v.  Aiidreivs,  10  Wallace,  327. 

1  ["  The  Courts  of  the  United  States  possess  no  powers  except  such 
as  the  Constitution  and  Acts  of  Congress  concur  in  conferring  upon 
them,  and  the  legal  presumption  is  that  every  cause  is  without  their 
jurisdiction,  until  and  unless  the  contrary  affirmatively  appears." 
United  States  v.  Southern  Pacific  Ri/.  Co.,  49  Fed.  Rep.  297.  See 
also  Mexican  Central  Railwaij  Co.  v.  Pinkney,  149  U.  S.  194.] 


THE    CIRCUIT   COURTS.  143 

Another  important  thing  to  be  attended  to  in  this 
connection  is,  that,  if  the  record  contains  the 
proper  averments  of  citizenship  to  found  the  juris- 
diction, these  averments  can  be  traversed  only  by 
a  plea  to  the  jurisdiction  of  the  court,  a  plea  in 
abatement ;  a  preliminary  plea,  going  to  the  juris- 
diction of  the  court.  This  was  decided  in  the  case 
of  WiMiffe  V.  Owings,  17  Howard,  47.  The  reason 
of  this  is,  that,  when  the  necessary  citizenship  is 
averred  upon  the  record,  and  the  defendant,  instead 
of  pleading  to  the  jurisdiction,  pleads  to  the  merits, 
he  admits  the  jurisdiction  of  the  court,  and  after- 
wards is  in  no  condition  to  deny  it.  And  this  is 
an  important  consideration ;  because,  where  the 
necessary  citizenship  is  averred  upon  the  record, 
and  the  defendant  traverses  a  matter  of  fact,  — 
traverses  the  fact  that  he  himself  is  a  citizen  of  a 
different  State  from  the  plaintiff,  or  that  the  plain- 
tiff is  a  citizen  of  a  different  State  from  himself,  — 
if  he  fails,  and  the  judgment  is  against  him,  he 
loses  his  case.  He  is  not  merely  ordered  to  answer 
over,  but  he  is  ordered  to  pay  the  debt  or  damages. 
This  is  a  matter  of  common  law,  —  it  does  not  rest 
at  all  in  the  peculiar  jurisdiction  of  the  courts  of  the 
United  States,  but  is  perfectly  well  settled.  You 
will  find  it  set  down  in  1st  Chitty's  Pleadings, 
464,  405.  There  is  also  the  case  of  3IcCarfee  v. 
Chambers,  6  Wendell,  649.  It  is  well-settled  law 
that,  where  a  defendant  pleads  a  dilatory  plea,  and 
by  it  traverses  a  matter  of  fact,  and  fails  on  his 
traverse,  he  fails  altogether,  and  the  judgment  is 
rendered  against  him.  That  being  so,  you  perceive 
that  it  is  a  very  delicate  matter  for  a  defendant  to 


144      JUEISDICTION,    PKACTICE,   AND   JURISPRUDENCE. 

take  his  chance  of  denying  the  citizenship  alleged  on 
the  record ;  because,  if  he  prevails,  he  only  defeats 
that  suit;  but  if  he  fails,  he  fails  altogether.^ 

I  will  now  proceed  to  the  further  consideration  of 
the  parties  over  whom  the  courts  of  the  United 
States,  under  this  eleventh  section,  have  jurisdic- 
tion. One  of  the  most  important  and  difficult  ques- 
tions on  the  subject  of  parties,  which  has  been 
almost  constantly  before  the  Supreme  Court  of  the 
United  States  during  the  last  quarter  of  a  century, 
is  the  question  of  jurisdiction  over  corporations. 
This  eleventh  section  deals  only  with  citizens,  and 
it  has  been  from  first  to  last  admitted  that  corpora- 
tions are  not  citizens.  They  are  political  beings, 
created  by  the  law,  and  cannot  sustain  the  character 
of  citizens.  Still,  owing  to  the  vast  number  of 
corporations  which  have  been  created  by  the  dif- 
ferent States,  for  almost  all  imaginable  purposes, 
and,  amongst  others,  for  wielding  great  amounts  of 
capita],  transacting  vast  amounts  of  business,  by 
the  ownership  of  vessels,  railroads,  banks,  insur- 
ance companies,  almost  all  the  departments  of  busi- 
ness which  produce  litigation,  it  became  very  early 
apparent  that,  unless  the  courts  of  the  United 
States  could  in  some  way  hold  jurisdiction  over 
this  class  of  persons,  they  would  answer  extremely 
ill  some  of  the  purposes  which  the  Constitution 
had  in  view  when  it  created  the  judicial  power  of 
the  United  States. 

'  Cases  of  citizenship  not  sufficiently  averred,  Godfrey  v.  Terry, 
97  U.  S.  171 ;  Robertson  v.  Cense,  Ibid.  646.  [As  to  what  constitutes 
citizpn,ship,  or  change  of  citizenship,  see  Allen  v.  Southern  California 
liy.  Co.,  70  Fed.  Rep.  725.] 


THE   CIRCUIT   COURTS.  145 

I  suppose  it  may  fairly  be  said,  that  neither  the 
framers  of  the  Constitution  nor  the  framers  of  the 
Judiciary  Act  had  corporations  in  view.  They 
were  so  few  at  that  time,  so  entirely  unimportant, 
that  it  is  probable  they  were  passed  over  without 
any  notice  or  consideration.  1  had  the  curiosity 
to-day  to  look  into  the  first  volume  of  the  Special 
Laws  of  Massachusetts,  which,  at  the  time  of  the 
formation  of  the  Constitution,  was  perhaps  as 
wealthy  a  State,  in  proportion  to  its  population, 
and  as  likely  to  have  created  business  corporations, 
as  any  other;  and  I  find  that  between  the  time 
when  the  Constitution  of  Massachusetts  was  formed, 
and  the  time  when  the  Constitution  of  the  United 
States  was  adopted  and  this  Judiciary  Act  passed, 
the  State  of  Massachusetts  created  but  one  private 
corporation,  and  that  was  the  Marine  Society  of  the 
town  of  Salem.  There  was  no  bank,  no  insurance 
company,  of  course  no  railroad  corporation  or  cor- 
poration owning  steamers,  or  any  of  those  things 
which  at  this  day  are  of  such  magnitude. 

When  this  subject  first  came  before  the  Supreme 
Court,  they  took  a  pretty  rigid  view  of  it.  They 
considered  that  a  corporation  created  by  the  law  of 
a  particular  State  was  like  a  partnership;  it  had 
some  privileges  which  partnerships  had  not,  but 
in  substance  they  considered  it  to  be  a  partner- 
ship, and  they  went  on  from  that  view  to  this  infer- 
ence :  that  if  all  the  members  of  a  corporation  were 
citizens  of  one  State,  and  the  party  on  the  other 
side  was  a  citizen  of  a  different  State,  by  alleging 
that  fact  jurisdiction  could  be  obtained.  This  was 
held  in  the  case  of  The  Bank  of  the  United  States  v. 

10 


146      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE, 

Beveaux,  5  Cranch,  61 ;  and  in  the  case  of  The 
Hope  Insurance  Company  v.  Boardman,  in  the  same 
book,  page  57.  The  two  cases  were  considered 
together;  and  it  was  repeated  afterwards,  so  late 
as  the  case  of  The  Bank  of  Vichshurg  v.  Slocomh, 
14  Peters,  60.  Now,  you  will  readily  see  that 
there  were  very  few  cases  of  large  corporations 
where  all  the  members  were  citizens  of  one  State, 
and  that,  if  it  were  necessary  to  aver  that  fact  on 
the  record,  the  jurisdiction  of  the  courts  of  the 
United  States  would  have  a  very  narrow  application 
to  corporations.  I  suppose  there  is  no  considerable 
corporation  created  by  either  of  the  States  in  which 
there  are  not  one  or  more  persons  who  are  stock- 
holders outside    of   the    State. 

Well,  this  was  a  difficulty  which  had  been  en- 
countered before  in  the  history  of  the  law.  If  you 
should  take  the  trouble  to  look  into  Sir  Henry 
Sumner  Maine's  admirable  book  on  the  History  of 
Ancient  Law,  you  will  find  mentioned  there  three 
cases  of  an  analogous  character.  The  first  arose 
under  the  Roman  law,  where  it  was  necessary,  in 
order  to  give  their  important  courts  jurisdiction, 
to  allege  that  the  plaintiff  was  a  Roman  citizen; 
but  after  the  commerce  of  the  city  and  the  empire 
became  so  extended,  and  such  a  number  of  foreign- 
ers had  important  rights  and  interests  to  be  vin- 
dicated in  the  courts,  they  introduced  what  they 
called  "a  fiction"  {fictio),  which  meant  that  any- 
body who  had  a  proper  cause  of  complaint  might 
allege  that  he  was  a  Roman  citizen,  and  that 
allegation  should  not  be  denied.  In  other  words, 
they    introduced,    by   their   own  authority,    a  rule 


THE    CIRCUIT   COURTS.  147 

that  a  falsehood  might  be  stated  on  the  record,  and 
that  the  other  party  could  not  allege  the  truth. 
Well,  there  were  two  instances  in  England  like 
this.  One  was  where  the  Court  of  Exchequer  ob- 
tained a  great  amount  of  jurisdiction  by  an  allega- 
tion in  the  declaration  that  the  plaintiff  was  a  debtor 
to  the  king,  and  could  not  pay  his  debt  unless  the 
court  would  help  him  to  recover  what  he  demanded 
in  that  action;  and  that  allegation  was  held  not  to 
be  traversable.  A  similar  allegation  was  permit- 
ted by  the  Court  of  King's  Bench,  in  order  to  obtain 
jurisdiction  as  against  the  Common  Pleas;  that  the 
plaintiff  was  in  the  custody  of  the  Marshal  of  the 
Court  of  King's  Bench,  and  consequently  could  not 
go  into  any  other  court  and  prosecute  his  rights. 
That  was  held  not  to  be  traversable. 

Now,  I  want  to  bring  your  attention  to  the  case 
of  The  Ohio  and  31ississippi  Railroad  Company  v. 
Wheeler,  1  Black,  286,  and  you  will  see  how  this 
decision  corresponds  with  the  progress  made  by 
the  Roman  and  English  courts  on  similar  sub- 
jects. Some  parts  of  the  marginal  note  express 
clearly  what  I  wish  to  bring  to  your  attention:  "A 
corporation  exists  only  in  contemplation  of  law  and 
by  force  of  law,  and  can  have  no  legal  existence 
beyond  the  bounds  of  the  sovereignty  by  which  it 
is  created,  and  it  must  dwell  in  the  place  of  its 
creation."  All  that  had  been  previously  settled, 
and  is  unquestioned  law.  "A  corporation  is  not  a 
citizen  within  the  meaning  of  the  Constitution,  and 
cannot  maintain  a  suit  in  the  courts  of  the  United 
States  against  a  citizen  of  a  different  State  from 
that  by  which  it  was  created,  unless  the  persons 


148    jurasDicTioN,  peactice,  and  jurisprudence. 

who  comprise  the  corporate  body  are  all  citizens  of 
that  State."  That  is  the  old  law.  "In  such  cases, 
they  may  sue  by  their  corporate  name,  averring 
the  citizenship  of  all  the  members,  and  such  a  suit 
would  be  regarded  as  the  joint  suit  of  individual 
persons,  united  together  in  a  corporate  body,  and 
acting  under  the  authority  conferred  upon  them  for 
the  more  convenient  transaction  of  business,  and 
consequently  entitled  to  maintain  a  suit  in  the 
courts  of  the  United  States  against  the  citizen  of 
any  State."     That  is  the  old  law  also. 

"  Where  a  corporation  is  created  by  the  laws  of 
a  State  "  (we  now  advance  to  some  new  doctrine), 
"the  legal  presumption  is  that  its  members  are 
citizens  of  the  State  in  which  alone  the  corporate 
body  has  a  legal  existence."  That  is  laid  down  as 
a  legal  presumption. 

"  A  suit  by  or  against  a  corporation  in  its  corpo- 
rate name  may  he  presumed  to  be  a  suit  by  or 
against  citizens  of  the  State  which  created  the  cor- 
porate body,  and  no  averment  or  denial  to  the  con- 
trary is  admissible  for  the  purpose  of  withdrawing 
the  suit  from  the  jurisdiction  of  a  court  of  the 
United  States."  There  is  the  Roman  "fiction." 
The  court  first  decides  the  law,  presumes  all  the 
members  are  citizens  of  the  State  which  created  the 
corporation,  and  then  says  you  shall  not  traverse 
that  presumption ;  and  that  is  the  law  now.  Under 
it,  the  courts  of  the  United  States  constantly  enter- 
tain suits  by  or  against  corporations.^     It  has  been 

1  Midler  v.  Dows,  94  U.  S.  444.  [In  many  of  the  States  there  are 
statutes  requiring  foreign  corporations  to  file  a  sworn  statement  with 
the  Secretary  of  State,  concerning  the  amount  of  their  capital  stock, 


THE   CIRCUIT   COUETS.  149 

SO  frequently  settled,  that  there  is  not  the  slightest 
reason  to  suppose  that  it  will  ever  be  departed  from 
by  the  court.  It  has  been  repeated  over  and  over 
again  in  subsequent  decisions;  and  the  Supreme 
Court  seem  entirely  satisfied  that  it  is  the  right 
ground  to  stand  upon;  and,  as  I  am  now  going  to 
state  to  you,  they  have  applied  it  in  some  cases 
which  go  beyond,  much  beyond,  these  decisions  to 
which  I  have  referred.  So  that  when  a  suit  is  to 
be  brought  in  a  court  of  the  United  States  by  or 
against  a  corporation,  by  reason  of  the  character  of 
the  parties,  you  have  only  to  say  that  this  corpora- 
tion (after  naming  it  correctly)  was  created  by  a 
law  of  the  State  of  Massachusetts,  and  has  its  prin- 
cipal place  of  business  in  that  State ;  and  that  is 
exactly  the  same  in  its  consequences  as  if  you  could 
allege,  and  did  allege,  that  the  corporation  was  a 
citizen  of  that  State.  According  to  the  present 
decisions,  it  is  not  necessary  you  should  say  that 
the  members  of  that  corporation  are  citizens  of 
Massachusetts.  They  have  passed  beyond  that. 
You  have  only  to  say  that  the  corporation  was 
created  by  a  law  of  the  State  of  Massachusetts,  and 
has  its  principal  place  of  business  in  that  State ; 
and  that  makes  it,  for  the  purposes  of  jurisdiction, 
the  same  as  if  it  were  a  citizen  of  that  State.  ^ 

etc.,  as  a  condition  of  their  bringing  suit  in  that  State.  Such 
statutes  cannot  operate  to  prevent  corporations  which  fail  to  comply 
with  them  from  bringing  suits  in  the  Federal  courts  of  the  State. 
Barlinfj  v.  Bank  of  British  North  America,  50  Fed.  Kep.  260.] 

1  [In  a  very  recent  case  (St.  Louis  ^  San  Francisco  By.  v.  James, 
161  U.  S.  54.5),  the  court  were  asked  to  go  one  step  further,  and  to 
hold  that  "if  a  corporation  of  one  State  .  .  .  is  antliorized  by  the 
law  of  another  State  to  do  business  therein,  and  to  be  endowed,  for 


150      JUmSDICTION,    PKACTICE,   AND   JURISPRUDENCE. 

Still,  there  are  cases  remaining  to  be  decided  on 
this  very  difficult  subject;  because  corporations  — 
particularly  railroad  and  canal  corporations,  whose 
works  extend  from  one  State  into  another  —  were 
frequently  either  licensed  by  that  other  State  to 
act  within  its  limits,  or  they  were  there  incorpo- 
rated ;  and  in  many  instances  the  two  were  declared 
to  constitute  but  one  corporation,  although  created 
by  two  States.  The  first  case  of  this  kind  before 
the  court  which  gave  rise  to  any  considerable  diffi- 
culty was  that  of  The  Baltimore  and  Ohio  Railroad 
Corporation  v.  Harris,  12  Wallace,  65.  That  cor- 
poration was  created  by  the  State  of  Maryland ;  but 
it  was  licensed  by  Congress  to  act  in  the  District 
of  Columbia,  and  by  the  legislature  of  Virginia  to 
act  in  that  State ;  and  the  question  was  whether  it 
could  be  treated  as  if  it  were  the  creation  of  Mary- 
land law  only.  In  that  case,  the  Supreme  Court 
held  that  it  was  a  Maryland  corporation ;  that  the 
authority  to  act  in  another  State,  or  the  license  to 
act  in  another  State,  did  not  affect  the  character  of 
the  corporation  so  that  it  was  disabled  from  alleg- 
ing itself  to  be  a  Maryland  corporation;  and  that 
from  that  allegation  the  presumption  arose  that  its 
members  were  citizens  of  the  State  of  Maryland, 
and  that  it  was  competent  to  sue  as  if  it  were  itself 
a  citizen  of  the  State  of  Maryland. 

Then,   however,    another   question   arose,   which 

local  purposes,  with  all  the  powers  and  privileges  of  a  domestic  cor- 
poration, such  adopted  corporation  shall  be  deemed  to  be  composed 
of  citizens  of  the  second  State,  in  such  a  sense  as  to  confer  jurisdic- 
tion on  the  Federal  courts  at  the  suit  of  a  citizen  of  the  State  of  its 
original  creation."  'I'his  step  the  court  refused  to  take.  See  the 
opinion,  which  is  long  and  instructive. J 


THE    CliiCUIT    COURTS.  151 

related  to  the  second  kind  of  occurrences  to  which 
I  have  adverted,  —  where  a  railroad  corporation 
extended  from  one  State  into  another,  and  had  an 
act  of  incorporation  in  each  of  them,  and  was 
declared  by  each  of  those  acts  of  incorporation  to 
be  the  same  political  body,  —  that  is,  to  be  a  citizen 
of  each  of  the  two  States.  Well,  in  the  case  in  13 
Wallace,  270,^  and  more  particularly  on  page  283, 
it  was  held  that  two  States  could  not  create  one 
corporation;  that  each  State  may  create  a  political 
being,  but  that  political  being  can  only  exist  within 
the  limits  of  that  State,  and  so  far  as  the  law  of 
that  State  which  created  it  extends ;  that  it  is  of  no 
consequence,  as  respects  jurisdiction,  that  some 
other  State  has  also  made  a  corporation  by  the 
same  name,  or  even  that  the  two  States  have 
declared  that  it  shall  constitute  one  corporation; 
that  they  are  two  corporations,  and  if  the  corpora- 
tion is  competent  to  sue  and  be  sued  in  the  State 
where  it  does  sue  or  is  sued,  —  competent  in  refer- 
ence to  the  other  party  to  tlie  suit,  —  then  it  is  of 
no  consequence  that  some  other  State  has  created  a 
corporation  by  the  same  name,  or  even  called  it  the 
same  corporation. ^ 

I  think  I  have  stated  now  all  that  is  needful  to 
enable  you  to  understand  this  complicated  subject 
of    jurisdiction  over  corporations ;   and  perhaps   I 

1  RaihiHuj  Company  v.   WhUtoii's  Adm'rs. 

2  A  corporation  created  by  the  laws  of  Iowa,  although  consoli- 
dated with  another  of  the  same  name  in  Missouri,  under  the  authority 
of  a  statute  of  each  State,  is  nevertheless  in  Iowa  a  corporation  exist- 
ing there  under  the  laws  of  that  State  alone.  Mailer  v.  Dows,  94  U.  S. 
444.  [See  also  Nashua  cf  Lowell  R.  R.  v.  Boston  <f-  Lowell  R.  R.,  136 
U.  S.  356  ;  St.  Louis  ^  San  Francisco  Ri/.  v.  James,  161  U.  S.  545.] 


152      JURISDICTION,    PRACTICE,    AND   JURISPRUDENCE. 

might  properly  repeat  simply,  that,  if  you  have 
occasion  to  bring  a  suit  by  or  against  a  corporation, 
and  the  party  on  the  other  side  is  competent  either 
to  sue  or  be  sued,  provided  the  corporation  were 
a  citizen  of  the  State  which  created  it,  you  may 
treat  the  corporation  as  a  citizen  of  the  State  which 
created  it,  and  on  the  record  you  have  only  to  aver 
that  it  was  created  by  the  law  of  a  particular  State, 
and  has  its  principal  place  of  business  therein. 
Then  it  will  stand  in  all  respects  as  if  it  were  a 
citizen,  though  we  all  know  that  it  is  not  a  citizen, 
and  cannot  be.^ 

[A  difficult  question  as  to  the  "residence"  and 
"  inhabitancy  "  of  corporations  arose  under  the  Act 
of  1887-1888.  Under  that  act,  as  we  have  seen 
already,  when  the  suit  is  founded  upon  diverse 
citizenship,  it  may  be  brought  in  that  District  where 
the  plaintiff  or  where  the  defendant  resides;  but 
when  the  ground  of  jurisdiction  is  anything  except 
diverse  citizenship,  it  must  be  brought  in  the  Dis- 
trict of  which  the  defendant  is  an  inhabitant.  Now, 
as  Judge  Curtis  has  shown,  it  is  settled  that  a  cor- 
poration is  a  citizen  of  that  State  only  where  it  is 
incorporated;  but  may  it  not  be  an  inhabitant  of, 
or  a  resident  in,  a  different  State  or  District  ?     An 

1  A  corporation  created  in  Nebraska  issued  its  bonds  and  secured 
them  by  a  mortgage.  Holders  of  some  of  the  bonds  ap]died  to  the 
trustee  of  the  mortgage  to  foreclose  it.  He  refused.  They  then  filed 
a  bill  in  the  Circuit  Court  agaiust  the  trustee,  the  corporation,  and 
others  of  the  bondholders,  all  citizens  of  Nebraska,  the  plaintiffs 
being  citizens  of  another  State.  Held,  that  the  court  had  jurisdic- 
tion, notwithstanding  some  of  the  defendants  were  joined  solely  be- 
cause they  refused  to  unite  with  the  plaintiffs  in  bringing  the  suit. 
Hotel  Company  v.  Wade,  97  U.  S.  13. 


THE   CIRCUIT   COURTS.  153 

example  would  be  found  in  the  case  of  a  railroad 
company  which  was  incorporated  in  Massachusetts, 
but  which  has  a  line  in  Vermont  also,  and  agents 
there  for  the  transaction  of  business.  Does  it 
reside  in,  or  is  it  an  inhabitant  of  the  District  of 
Vermont?  The  case  can  be  put  still  stronger,  for 
in  many  States  foreign  corporations  (that  is,  cor- 
porations of  other  States)  doing  business  there,  are 
required  to  have  an  agent  in  the  State  upon  whom 
process  can  be  served.  In  such  cases,  is  the  foreign 
corporation  a  resident  in,  or  inhabitant  of  the  Dis- 
trict in  that  State,  or  in  that  part  of  the  State, 
where  it  does  business  and  has  such  an  agent  ? 
Under  the  Acts  of  1789  and  of  1875,  this  question 
did  not  arise,  for,  under  those  acts,  a  defendant  might 
be  sued  in  any  District  where  he  could  be  "found," 
so  that  process  could  be  served  upon  him,  ^  But  in 
the  Act  of  1887-1888  this  "  found  "  clause  did  not 
occur.  There  were  three  decisions^  in  which  the 
Supreme  Court  had  discussed  what  is  meant  by 
"citizen,"  "resident,"  "inhabitant,"  and,  reasoning 
from  these  decisions,  the  Circuit  Courts  came  to 
opposite  conclusions  upon  the  subject,  some  holding 
that  a  corporation  could,^  and  some  that  it  could 
nof  be  a  resident  in  or  inhabitant  of  a  State  other 
than  that  where  it  was  incorporated.     When   the 

1  [United  States  v.  American  Bell  Telephone  Co.,  29  Fed.  Rep.  17, 
35.] 

2  [Insura7ice  Compani/  v.  Francis,  11  Wall.  210;  Ex  parte  Schollen- 
berger,  96  U.  S.  369,  377  ;  Railroad  Compani/  v.  Koontz,  104  U.  S.  5.] 

3  [As  in  Consolidated  Store   Service  Co.  v.  Lamson    Consolidated 
Store  Serrice  Co.,  41  Fed.  Rep.  833.] 

*  [A»  ill  National  Typographic  Co.  v.  New  York  Typographic  Co., 
44  Fed.  Rep.  711.] 


154      JUEISDICTION,   PKACTICE,   AND   JURISPKUDENCE. 

question  came  before  the  Supreme  Court  they  took 
the  latter  view.  They  held  that  resident  and  inhab- 
itant are  equivalent  expressions,  and  that  a  corpo- 
ration cannot  reside  in  or  be  an  inhabitant  of  any 
State  except  that  in  which  it  was  created.  ^ 

And,  further,  it  is  held  that  suit,  in  such  cases, 
cannot  be  brought  in  any  District,  except  that  in 
which  the  defendant  has  its  headquarters,  although 
it  may  transact  business  and  have  agents  in  other 
Districts  in  the  same  State. ^ 

But  of  course  a  corporation,  like  an  individual, 
might  consent  to  be  sued  in  any  State  or  District, 
provided  that  the  requisite  diversity  of  citizenship 
existed,  or  that  a  Federal  question  was  involved. 
It  has  been  held,  however,  that  an  alien  corpora- 
tion may  be  sued  by  a  citizen  of  the  United  States 
in  any  District  in  which  valid  service  can  be  made 
upon  the  defendant.  This  was  chiefly  upon  the 
ground  that  the  words  "any  person,"  in  the  sen- 
tence "no  civil  suit  shall  be  brought  before  either 
of  said  courts  against  any  person  ...  in  any  other 
District  than  that  whereof  he  is  an  inhabitant," 
refer  only  to  inhabitants  of  the  United  States.^ 

Another  point  in  regard  to  the  jurisdiction  of  the 
Federal  courts  over  corporations  should  be  stated 

1  [Shaw  V.  Qnlnry  Mining  Co.,  145  U.  S.  444.  Mr.  Justice  Harlan 
dissented.  Shortly  before  he  had  stated  a  different  view  in  United 
States  V.  Southern  Pacific  Rij.  Co.,  49  Fed.  Rep.  297.] 

2  [Galveston  tfc.  Ry.  v.  Gonzalrs,  151  U.  S.  496.  (In  this  case  there 
is  a  stronjj:  dissenting  opinion.)  A  bill  is  demurrable  which  sets  out 
that  the  defendant  is  a  resident  of  Virginia,  without  naminaj  the  Dis- 
trict, since  there  are  two  Districts  in  Virginia  :  Ilnrveij  v.  Richmond 
Si-c.  R.  R.  Co.,  64  Fed  Rep.  19.] 

»  [In  re  Hohorst,  150  U.  S.  653.] 


THE   CIRCUIT   COURTS.  155 

here.  When  a  Federal  court  has  onca  acquired 
jurisdiction  over  a  corporation  it  will  administer 
the  relief  asked  for  by  the  plaintiff  not  only  in  the 
State  or  District  where  the  corporation  resides, 
i.  e.,  was  incorporated,  but  also  in  any  other  State 
where  its  property  is  situated.  For  example,  when 
there  is  a  suit  against  a  railroad  to  foreclose  a 
mortgage  given  by  it,  and  the  mortgage  covers 
property  of  the  railroad  in  several  States,  the  court 
in  which  the  suit  was  brought  will  exercise  juris- 
diction, so  far  as  the  mortgage  is  concerned,  in 
every  State  where  the  mortgaged  property  is  situ- 
ated. If  the  rule  were  otherwise,  the  mortgagee 
would  be  put  to  the  trouble  and  expense  of  bring- 
ing a  separate  suit  in  each  of  the  States  where  the 
mortgaged  property  lay.^ 

The  next  section  of  the  statute,  numbered  [9] 
above,  runs  as  follows:  "Nor  shall  any  Circuit  or 
District  Court  have  cognizance  of  any  suit,  except 
upon  foreign  bills  of  exchange,  to  recover  the  con- 
tents of  any  promissory  note  or  other  chose  in  action 
in  favor  of  any  assignee,  or  of  any  subsequent  holder 
if  such  instrument  be  payable  to  bearer,  and  be  not 
made  by  any  corporation,  unless  such  suit  might 
have  been  prosecuted  in  such  court  to  recover  the 
said  contents  if  no  assignment  or  transfer  had  been 
made. " 

The  purpose  of  this  section  is  to  prevent  the 
owner  of  a  cJiose  in  action  w^ho  cannot  sue  upon  it 
in   a  Federal  court,    because  there   is   no   diverse 

1  [Midler  t.  Doirs,  94  U.  S.  444,  449.  The  limits  of  the  rule  are 
stated  iu  Mercanlile  Trust  Co.  v.  Kanawha  <^-c.  Ry.  Co.,  39  Fed.  Kep. 
337.] 


156      JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

citizenship  between  him  and  the  defendant,  from 
assigning  it,  colorably  perhaps,  to  a  citizen  of  a 
State  different  from  his  own,  so  that  the  Federal 
Court  may  have  jurisdiction  of  the  suit  upon  it. 

The  section  is  very  clumsily  worded,  and  its 
intent  is  much  more  clearly  stated  in  the  following 
paraphrase ;!  "The  Circuit  Court  shall  have  no 
jurisdiction  over  suits  for  the  recovery  of  the  con- 
tents of  promissory  notes  or  other  choses  in  action 
brought  in  favor  of  assignees  or  transferees  except 
over,  first,  suits  upon  foreign  bills  of  exchange; 
second,  suits  that  might  have  been  prosecuted  in 
such  court  to  recover  the  said  contents,  if  no  assign- 
ment or  transfer  had  been  made ;  third,  suits  upon 
choses  in  action  payable  to  bearer,  and  made  by  a 
corporation." 

The  effect  of  this  section  is,  therefore,  to  prevent 
the  assignee  of  any  chose  in  action  from  suing  upon 
it  in  a  Federal  court,  unless  his  assignor  ^  could 
have  brought  suit  there,  —  except  in  the  case  of 
foreign  bills  of  exchange,  and  of  promissory  notes 
issued  by  corporations,  and  made  payable  to  bearer. 
This  second  exception  refers  of  course  to  stocks 
and  bonds  emitted  by  corporations,  and  it  has 
been  held  in  reference  to  these  that  it  is  not  suffi- 
cient that  they  should  be  made  payable  to  a  given 
person  or  to  his  order;  that  is  not  equivalent  to 
being  made  payable  to  bearer. ^     But  a  note  made 

1  [Ey  Judge  BiUings  in  Newgass  v.  City  of  New  Orleans,  33  Fed. 
Rep.  196.] 

^  [As  to  who  is  an  assignor,  see  Holmes  \.  Goldsmith,  147  U.  S. 
150.] 

8  [Rollins  V.  Chaffee  County,  34  Fed.  Rep.  91.] 


THE    CIKCUIT   COUETS.  157 

by  a  corporation  payable  to  itself  and  indorsed  in 
blank  is  a  note  payable  to  bearer.  ^ 

In  the  Act  of  1875,  which,  as  I  have  said,  was 
intended  to  widen  the  jurisdiction  of  the  Circuit 
Courts,  all  promissory  notes  and  bills  of  exchange, 
foreign  or  domestic,  were  brought  within  the  excep- 
tions to  this  clause,  so  that  the  assignee  of  such  a 
promissory  note  or  bill  of  exchange  could  sue  upon 
it  in  the  Federal  Court,  although  his  assignor  could 
not  have  done  so.  On  the  other  hand,  in  the  Act 
of  1789,  the  corresponding  section  was  more  re- 
stricted than  it  is  in  the  present  act,  for,  in  the  Act 
of  1789,  the  only  exception  was  of  "foreign  bills  of 
exchange. " 

It  is  important  to  remember  that  the  section 
embraces  only  choses  in  action.  All  other  rights  of 
suit  may  be  assigned,  and  the  assignee  may  sue 
upon  them  in  the  Federal  Courts  without  regard  to 
the  citizenship  of  his  assignor. ^  But  the  phrase 
chose  ill  action  is  very  inclusive.  It  "  includes  the 
infinite  variety  of  contracts,  covenants,  and  promises 
which  confer  on  one  party  a  right  to  recover  a 
personal  chattel  or  a  sum  of  money  from  another 
by  action. "  ^  But  the  term  does  not  embrace  "  mere 
naked  rights  of  action  founded  on  some  wrongful 
act,  some  neglect  of  duty  to  which  the  law  attaches 

1  [Barling  v.  Bank  of  British  North  America,  50  Ted.  Eep. 
260.] 

^  [Nor  is  jurisdiction  defeated  by  the  fact  that  the  assignment  was 
made  for  the  purpose  of  obtaining  jurisdiction,  —  provided  that  the 
assignment  was  an  absolute  one.  Lehigh  Mining  §•  Mfg.  Co.  v.  Kelly, 
160  U.  S.  327.] 

3  [Sheldon  v.  Sill,  8  How.  441,  449.  See  also  New  Orleans  v. 
Benjamin,  153  U.  S.  411,  433.] 


158      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

damages."^  Thus  the  assignee  of  a  claim  for 
damages  for  entering  upon  kinds  and  carrying  away 
timber  can  bring  suit,  if  there  be  diversity  of  citi- 
zenship between  him  and  the  defendant,  without 
regard  to  the  citizensliip  of  his  assignor.^] 

Nor  does  it  [the  clause  in  question]  apply  to  an 
action  of  replevin  to  recover  the  note  itself,  but 
only  to  an  action  to  recover  its  contents,  —  that 
beina:  the  sense  of  these  words  of  the  act:  "the 
contents  of  any  promissory  note  or  other  cliose  in 
action.''''  The  Supreme  Court  say  that  these  words 
limit  the  restriction  to  an  action  to  recover  "the 
contents  "  of  a  note,  and  not  to  recover  possession 
of  the  note  itself.  You  will  find  this  laid  down  in 
the  case  of  Sheldon  v.  Sill,  8  Howard,  441,  and  in 
the  later  case  of  Desliler  v.  Bodge,  16  Howard,  622 ; 
and  the  same  distinction  is  made  between  suits  to 
recover  a  debt  secured  by  a  mortgage,  and  suits  to 
recover  the  property  mortgaged.  If  a  suit  is  brought 
by  an  assignee  to  recover  a  debt  secured  by  a  mort- 
o-affe,  the  Circuit  Court  has  not  iurisdiction  unless 
the  assignor  could  have  sued  in  that  court.  But 
if  a  suit  is  brought  by  an  assignee  to  recover  the 
land  itself,  then  the  Circuit  Court  has  jurisdiction, 
provided  the  assignee  has  the  necessary  citizenship; 
and  it  is  immaterial  whether  the  assignor  could  sue 
or  not.  And  this  arises  also  out  of  the  same  lan- 
guage to  which  I  have  referred;  namely,  "the  con- 
tents of  a  promissory  note  or  other  choae  in  action. " 
The  limitation  applies  only  to  choses  in  action,  and 
not  to  property,  however  it  may  be  connected  with 
them. 

1  [Bushnell  v.  Kennedi/,  9  Wall.  387.] 

2  [Ambler  v.  Eppinger,  137  U.  S.  480.] 


THE    CIRCUIT    COURTS.  159 

In  this  connection,  it  may  be  proper  to  state  that 
the  burden  of  proof  at  the  trial  is  upon  the  plaintiff 
to  show  that  the  instrument  was  one  on  which  the 
assignor  could  have  sued.  That,  you  perceive, 
differs  from  what  I  have  already  stated  in  respect 
to  the  allegation  of  citizenship.  When  the  proper 
citizenship  is  alleged  upon  the  record,  it  can  be 
traversed  only  by  a  plea  to  the  jurisdiction,  and  at 
the  trial  it  is  not  necessary  to  give  any  evidence  of 
citizenship;  it  is  conclusively  admitted  by  plead- 
ing to  the  merits.  It  is  not  so,  however,  in  refer- 
ence to  this  point  of  the  competency  of  the  assignee 
to  sue  on  a  chose  in  action  depending  upon  the 
competency  of  his  assignor.  He  must  prove  at  the 
trial,  not  that  he  is  a  citizen, — because  he  has 
alleged  that  on  the  record,  and  it  is  admitted  con- 
clusively ;  but  he  must  prove  that  his  assignor,  who 
appears  upon  the  face  of  the  note  as  indorser,  or 
upon  the  back  of  the  bond  or  otherwise  as  the 
assignor  of  the  bond  or  whatever  may  be  the  cJiose 
in  action,  —  he  must  prove  at  the  trial  that  his 
assignor  was  competent  to  sue,  otherwise  he  fails. 
This  was  decided  in  the  case  of  Bradley/  v.  Bhines* 
Adm'rs,  8  Wallace,  393. 


160      JUPJSDICTION,   PRACTICE,   AND   JURISPRUDENCE. 


CHAPTER  V. 

THE  CIRCUIT  COURTS  (continued). 

I  NOW  desire  to  turn  to  .  .  .  the  jurisdiction  of  the 
Circuit  Courts  arising  out  of  the  subject-matter  of 
the  suits. 

In  order  to  have  a  clear  view  of  this,  it  is  neces- 
sary to  refer  to  the  second  section  of  the  third 
article  of  the  Constitution,  which  I  will  read  to 
you :  — 

"  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made  or 
which  shall  be  made  under  their  authority ;  to  all 
cases  affecting  ambassadors,  other  public  ministers, 
and  consuls;  to  all  cases  of  admiralty  and  mari- 
time jurisdiction," 

There  we  have  the  entire  grant  of  judicial  power 
made  to  the  United  States  on  account  of  the  subject- 
matter.  Then  follows  a  grant  depending  upon  the 
character  of  the  parties.  You  will  perceive  that 
subject-matter  is  "  all  cases  in  law  and  equity  aris- 
ing under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made  or  which  shall  be  made 
under  their  authority;  to  all  cases  affecting  ambas- 
sadors, other  iml)lic  ministers,  and  consuls;  to  all 


THE   CIRCUIT   COUKTS.  IGl 

cases  of  admiralty  and  maritime  jurisdiction." 
Tlie  nature  and  extent  of  this  grant  of  power  were 
considered  with  very  great  care,  and  with  his  usual 
ability,  by  Chief  Justice  Marshall,  in  the  case  of 
Osbornx.  The  Bank  of  the  United  States,  9  Wheaton, 
738.  That  is  a  case  which  1  have  already  more 
than  once  mentioned  to  you,  where  a  suit  was 
brought  by  the  Bank  of  the  United  States  in  the 
Circuit  Court,  under  a  provision  in  its  charter  to 
that  effect,  allowing  it  to  sue  in  the  Circuit  Courts 
of  the  United  States.  It  was  insisted  that  that  was 
not  within  the  grant  of  judicial  power  in  the  Con- 
stitution ;  but  it  was  held  that,  inasmuch  as  this 
corporation  owed  its  existence  to  a  law  of  the 
United  States,  any  suit  which  it  could  bring  might 
properly  be  said,  in  reference  to  this  grant  of  power 
in  the  Constitution,  to  arise  under  a  law  of  the 
United  States,  and  that  therefore  it  was  competent 
to  sue  on  account  of  the  subject-matter.  At  first 
view,  it  might  seem  to  depend  on  the  character  of 
the  party,  and  in  one  sense  it  did ;  but  it  was  the 
character  of  the  party  derived  from  a  law  of  the 
United  States;  and  it  is  the  examination  of 
the  extent  of  this  grant  which  gives  so  much  value 
to  the  opinion  of  the  Chief  Justice  in  that  case. 

Now,  under  this  grant  of  power,  you  will  find, 
in  the  first  place,  that  Congress  has  conferred  upon 
the  Circuit  Courts  full  jurisdiction,  both  at  law 
and  in  equity,  over  patent  and  copyright  cases. 
Letters-patent,  as  you  know,  are  granted  by  the 
United  States,  under  the  provision  made  in  the 
Constitution,  which  enables  Congress  to  grant  to 
authors    and   inventors,    for  a  limited  period,   the 

11 


162      JUEISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

exclusive  right  to  their  inventions  or  discoveries. 
Patents  and  copyrights,  therefore,  are  grants  made 
by  the  United  States,  under  laws  passed  by  Congress 
under  the  authority  of  the  Constitution;  and  any 
case  which  respects  either  a  patent  or  a  copyright 
must  necessarily  be  a  case  arising  under  a  law  of 
the  United  States. ^  By  the  fifty-fifth  section  of  the 
Patent  Act  of  July  8,  1870,2  full  jurisdiction, 
both  at  law  and  in  equity,  is  conferred  on  the 
Circuit  Courts  over  patent  cases,  and  by  the  hun- 
dred and  sixth  section  over  copyright  cases. ^  And 
this,  especially  the  first,  — that  is,  jurisdiction  over 
patent  cases,  at  law  and  in  equity,  —  has  become, 
in  many  parts  of  the  country,  perhaps  the  most 
important  branch  of  their  civil  jurisdiction,  both 
in  point  of  magnitude  of  the  interests  involved,  as 
well  as  the  amount  and  quantity  of  litigation.* 

1  [There  is  a  difference  of  opinion  as  to  whether  a  patent  suit  may 
be  brought  in  any  District  where  service  can  be  had,  or  whether 
patent  suits  are  witliiu  the  Statute  of  1887-1888,  and  consequently 
must  be  brought  in  the  District  of  which  the  defendant  is  an  inhabi- 
tant. In  re  Ilohorsf,  150  U.  S.  653,  661,  it  is  said  that  they  are  not 
within  the  statute ;  and  this  dictum  is  followed  in  Smith  v.  Sarge}it 
M'f'g  Co.,  67  Fed.  Rep.  801.  But  see,  contra,  Donnelly  v.  United 
States  Cordage  Co.,  66  Fed.  Rep.  61.3.] 

2  See  Revised  Statutes,  §  629,  clause  9.  [This  section  is  not 
repealed  by  the  Act  of  1887-1888  regulating  the  jurisdiction  of  the 
Circuit  Courts.     Donnelly  v.  United  States  Cordage  Co.,  supra.] 

8  Rev.  Stat.  §  629,  clause  9. 

4  By  Section  711  of  the  Revised  Statutes,  the  jurisdiction  of  the 
courts  of  the  United  States  is  made  exclusive  of  that  of  the  State 
courts  in  "  all  cases  arising  under  the  patent-right  or  copyright  laws 
of  the  United  States."  It  is  important  for  the  practitioner  to  note 
the  sense  in  which  Judge  Curtis  has  used  the  expression  in  the  text, 
"  any  case  which  respects  cither  a  patent  or  a  copyright,"  etc.  A 
case  may  respect  or  relate  to  a  patent  or  a  copyright  in  one  sense, 
and  yet  it  may  not  be  within  the  jurisdiction  of  the  Federal  courts. 


THE   CIRCUIT   COURTS.  163 

Another  subject  over  which  Congress  has  given 
these  courts  jurisdiction  is  suits  arising  under 
laws  for  the  collection  of  duties  on  imports.  This 
was  done  by  the  act  of  the  2d  of  March,  1833,  §  2, 
found  in  4  Statutes  at  Large,  632.  The  wants  of 
the  country  having  compelled  Congress  to  pass 
internal  revenue  acts,  they  have  legislated  to  give 
the  courts  of  the  United  States  jurisdiction  (and 
particularly  the  Circuit  Courts,  of  which  we  are 
now  speaking)  of  suits  arising  under  those  laws  for 
the  collection  of  internal  revenue,  or  in  any  manner 
connected  with  the  administration  of  those  laws. 
Without  commenting  particularly  upon  each  one 
of  those  statutes,  I  will  give  you  a  reference  to 
them,  so  that,  if  you  have  occasion,  you  can  recur 

Thus,  if  the  controversy  relates  to  the  title  or  ownersliip  of  the  patent 
or  copyright,  or  to  the  construction  or  operation  of  any  contract 
respecting  the  title,  the  case  does  not  "arise  under  a  law  of  the 
United  States,"  in  the  sense  in  which  that  phrase  is  used  in  the  pro- 
vision of  the  Constitution  which  defines  the  judicial  power  of  the 
United  States.  The  case  arises  under  tlie  patent  or  copyright  laws 
of  the  United  States  when  the  controversy  relates  to  the  exercise  of 
tlie  exclusive  riglit  secured  by  those  laws.  There  may  be  cases 
wliere  the  suit  involves  both  the  construction  of  a  contract,  and  the 
construction  of  the  patent  to  which  the  contract  relates.  In  these 
cases  the  jurisdiction  of  the  Federal  courts,  on  account  of  the  subject- 
matter,  is  not  ousted,  but,  the  patent  itself  being  involved,  it  carries 
the  whole  case.  (Littlejield  v.  Pern/,  21  Wallace,  205.)  For  the 
distinctions  between  cases  which  ari.se  under  the  patent  laws,  and 
therefore  give  jurisdiction  to  the  Federal  courts,  whatever  the  citi- 
zenship of  the  parties,  and  those  which  can  only  come  into  that  juris- 
diction by  reason  of  the  citizenship  of  the  parties,  see  Curtis  on 
Patents,  §  494,  et  seq.,  and  the  authorities  there  cited.  [See  also 
Marsh  V.  Nichols,  140  U.  S.  344;  Hartell  v.  Tiirjhmnn,  99  U.  S.  547; 
White  V.  Lea-kin,  144  U.  S.  628.  The  right  to  sue  in  equity  upon  a 
patent  is  discussed  in  Root  v.  Railway  Co.,  105  U.  S.  189,  —  an 
extremely  valuable  case  to  tlie  student  of  equity  or  of  patent  law.] 


2  64         JUKISDICTION,    PRACTICE,   AND   JUKISPRUDENCE. 

to  them.  The  earliest  one  is  in  13  Statutes  at 
Large,  239,  §§  41,  179 ;  in  the  same  book,  483,  §  1, 
is  a  provision  on  this  subject;  then  in  14  Statutes 
at  Large,  111,  §  9 ;  145,  §  9 ;  475,  §  10 ;  483,  §  25,  are 
still  further  provisions;  and,  lastly,  in  15  Statutes 
at  Large,  167,  §  106.  Congress  has  also  given 
these  courts  jurisdiction  to  administer  the  laws 
connected  with  the  Post-Office,  to  entertain  suits  for 
the  recovery  of  penalties,  and  other  subjects  which 
arise  in  the  course  of  the  administration  of  these 
})0stal  laws.  That  legislation  is  found  in  5  Statutes 
at  Large,  739,  §  20.  i 

The  national  banks  created  by  Congress  are  also 
authorized  to  sue  and  be  sued  in  the  Circuit  Courts 
of  the  United  States,  although  there  is  concurrent 
jurisdiction  in  the  courts  of  the  State  and  county 
where  the  bank  is  located.  This  act  will  be  found 
in  13  Statutes  at  Large,  116,  §  57.  The  language 
of  that  statute,  you  will  find  on  looking  at  it,  is 
simply  an  authority  to  bring  suits  against  the 
banks.  They  are  made  capable  of  being  sued  in 
the  Circuit  Courts  of  the  United  States,  or  in  a 
State  court  of  competent  jurisdiction  in  the  city  or 
county  where  the  bank  is  located,  I  think  is  the 
language.  But  the  question  was  made  whether  that 
meant  that  the  banks  could  sue,  as  well  as  be  sued  ; 
and  the  Supreme  Court  of  the  United  States,  in 
Kennedy  v.  Gibson,  8  Wallace,  498,  decided  that 
the  true  interpretation  of  this  statute  was  that  the 
banks  might  sue,  as  well  as  be  sued.^ 

1  The  jurisdiction  over  suits  arising  under  the  impost,  internal 
revenue,  and  postal  laws  is  now  vested  in  the  Circuit  Courts  by  §  629 
of  the  Revised  Statutes. 

2  See  Revised  Statutes,  §§  629,  cl.  10;  5237.     [See  p.  117,  supra.} 


THE   CIRCUIT   COURTS.  165 

There  is  a  provision  (and  it  is  a  very  important 
one)  in  this  National  Banking  Act  which  enables 
the  Comptroller  of  the  Currency,  whenever  he  is  of 
opinion  that  a  bank  is  in  a  condition  dangerous  to 
the  public,  to  enjoin  its  further  proceedings,  take 
possession  of  it  through  a  receiver,  whom  he  him- 
self appoints,  and  wind  it  up.  You  perceive  that 
this  is  a  very  important  power,  and  one  which 
might,  through  mistake  or  any  othei-  cause,  be 
greatly  abused ;  and  at  the  same  time,  I  suppose,  it 
is  often  necessary  that  great  promptness  should  be 
used,  and  that  it  should  be  an  executive  rather  than 
a  judicial  power ;  but  Congress  saw  the  propriety  of 
subjecting  it  to  the  control  of  the  judicial  power, 
and  therefore,  by  a  provision  in  the  Banking  Act, 
§§  50  and  57,  they  have  given  to  the  Circuit  Courts 
of  the  United  States  power,  on  the  application  of  a 
bank  thus  proceeded  against,  to  examine,  judicially, 
the  question  whether  a  case  exists  in  which  the 
bank  is  thus  dangerous  to  the  juiblic;  and  if  they 
find  the  bank  not  to  be  in  that  condition,  the  court 
is  authorized  to  enjoin  the  commissioner  from 
further  proceedings  in  the  case.^ 

Similar  lea-islation  had  occurred  much  earlier  in 
reference  to  another  class  of  cases,  which  is  import- 
ant and  interesting  in  itself.  All  the  officers  of  the 
government  who  collect  its  taxes,  its  customs,  or 
anv  of  its  moneys,  or  who  are  intrusted  with  the 
public  moneys  for  the  purposes  of  distribution,  are 
obliged  to  account,  according  to  law,  with  some 
appointed  authority  in  the  Treasury  Department, 
or  connected  therewith ;  or,  if  it  be  the  Post-Office 

1  See  §§  5234-5237  of  the  Revised  Statutes. 


166      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

or  the  War  Department,  they  are  obliged  to  account 
with  officers  who  are  designated  by  law  for  that 
purpose  in  those  departments.  And  whenever  a 
balance  is  found  against  one  of  those  officers,  it  is 
not  necessary  for  the  United  States  to  put  a  claim 
in  suit  against  him ;  but  on  that  balance  being  cer- 
tified by  the  proper  accounting  officer,  a  warrant  of 
distress  issues  at  once  against  him  and  his  goods 
and  lands,  and  against  his  sureties.  That,  as  you 
perceive,  is  an  executive  act,  and  one  which  ought, 
in  some  way,  to  be  brought  under  judicial  review; 
and  that  has  been  done.  It  might  be  well  for  you, 
in  reference  to  this  class  of  cases,  to  look  at  the 
case  of  Murray  v.  HoboJcen  Land  Company,  18 
Howard,  272,  where  the  question  was  made  whether 
these  distress  warrants  were  constitutional ;  whether 
it  was  not  a  usurpation  of  power  on  the  part  of  the 
executive,  under  the  authority  of  Congress,  to 
undertake  to  pass  upon  the  question  whether  an 
officer  was  indebted  to  the  government,  and  to  issue 
process,  in  its  nature  final,  to  collect  that  debt, 
without  any  judicial  inquiry.  The  Supreme  Court 
decided  that  it  was  a  constitutional  law,  for  the 
reasons  which  you  will  find  assigned  there.  ^ 

Now,  Congress  has  provided,  in  the  statutes  to 
which  I  will  immediately  give  you  a  reference,  that 
wherever  a  distress  warrant  of  this  kind  issues,  the 
officer  against  whom  it  issues  may  apply  to  a  court 
of  the  United  States  (he  may  apply  to  the  District 
Court  as  well  as  the  Circuit  Court) ;  and  satisfy 
that  court  that  there  is  no  occasion  for  taking  the 
proceedings  against  him,  because  the  alleged  balance 

1  See  §§  3G24-3637  of  the  Revised  Statutes. 


THE   CIRCUIT   COURTS.  1G7 

is  not  due,  or  because  it  is  secured;  and  he  is 
obliged,  in  some  circumstances,  to  offer  a  bond, 
with  surety,  before  the  court  is  empowered  to  grant 
an  injunction;  but  when  he  satisfies  the  court  that 
the  proceedings  ought  not,  in  equity  and  justice,  to 
be  pursued  any  further,  the  court  is  authorized  to 
enjoin  any  further  proceedings.  This  you  will  find 
provided  for  in  3  Statutes  at  Large,  595,  §§  4,  6, 
and  4  Statutes  at  Large,  414,  §  1.  And  inasmuch 
as  the  officer  proceeded  against  may  apply  to  a 
judge  of  the  District  Court,  as  well  as  to  a  judge 
of  the  Circuit  Court,  — if  he  should  happen  to  have 
done  so,  and  the  judge  of  the  District  Court  should 
have  denied  the  application,  or  refused  the  injunc- 
tion, there  is  another  statute  which  gives  an  appeal 
to  the  Circuit  Court.  That  is  in  16  Statutes  at 
Large,  44,  §  2.  So  that,  if  he  first  goes  to  a 
District  Judge,  and  fails  there,  he  may  take  an 
appeal  from  the  refusal  of  the  District  Judge  to  the 
Circuit  Court. ^ 

Another  writ  which  the  Circuit  Courts  are 
allowed  to  issue  is  not  covered  specifically  by  this 
fourteenth  section,  but  referred  to  generally.  The 
language  is,  "to  issue  writs  of  scire  facias,  habeas 
corpus,  and  all  other  writs  not  specially  provided 
for  by  statute,  which  may  be  necessary  for  the 
exercise  of  their  respective  jurisdictions,  and  agree- 
ably to  the  principles  and  usages  of  law.  "^  Well, 
the  question  has  arisen,  whether  the  Circuit  Courts 

1  See  the  references  in  the  preceding  note.  [The  appeal  lies  now 
not  to  the  Circuit  Court,  but  to  the  Circuit  Court  of  Appeals.  See 
ante,  p.  67.] 

*  See  Revised  Statutes,  §  716. 


168      JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

could  issue  writs  of  mandamus,  either  to  an  inferior 
tribunal,  which  is  the  District  Court,  or  to  a  public 
officer,  commanding  them  to  do  some  act,  accord- 
ing to  the  nature  of  that  writ  at  the  common  law ; 
and  it  has  been  held,  in  the  case  of  Riggs  v.  Johnson 
County,  6  Wallace,  166,  that  the  Circuit  Courts  in 
the  different  States  have  no  jurisdiction  to  issue  a 
writ  of  mandamus  for  any  other  purpose  than  to 
carry  out  their  jurisdiction  obtained  in  some  other 
case.  If  they  have  a  case  before  them  over  which 
they  have  jurisdiction,  and  it  is  necessary  to  issue 
a  writ  of  mandamus,  in  order  to  carry  that  jurisdic- 
tion into  complete  effect,  then  they  have  power 
to  issue  the  writ;  but  they  have  not  the  power  to 
entertain  a  writ,  so  to  speak,  where  their  jurisdic- 
tion is  founded  upon  this  writ  itself.  In  this  case 
of  Riggs  V.  Johnson  County,  the  Circuit  Court  had 
rendered  a  judgment  against  the  county ;  the  county 
had  no  property,  but  the  authorities  of  the  county 
had  power  to  tax  its  inhabitants  to  pay  its  debts, 
and  they  refused  to  do  so  to  pay  this  debt.  The 
Supreme  Court  decided  that  the -Circuit  Court  had 
power  to  issue  a  writ  of  mandamus  to  compel  the 
officers  of  that  county  to  levy  a  tax,  collect  it,  and 
pay  this  debt,  because  they  were  only  carrying  into 
complete  execution,  and  giving  complete  effect  to, 
the  jurisdiction  which  they  acquired  in  the  suit  in 
which  the  judgment  was  rendered ;  and  it  was  like 
issuing  a  writ  of  execution  to  collect  a  debt,  for 
it  was  but  another  mode  of  executing  their  judg- 
ment, rendered  necessary  by  the  peculiar  character 
of  the  debtor.  ^ 

1  See  Eevised  Statutes,  §  688. 


THE    CIRCUIT   COURTS.  169 

Another  very  important  branch  of  the  jurisdic- 
tion of  the  Circuit  Courts  is  their  equity  jurisdic- 
tion. It  is  provided  in  the  eleventh  section  of  the 
Act  of  1789  that  "tlie  Circuit  Courts  shall  have 
orioinal  cos-nizance  of  all  suits  of  a  civil  nature  at 
common  law  or  in  equity,"  where  the  other  condi- 
tions, which  immediately  follow,  exist.  In  the 
sixteenth  section  of  the  same  act  is  this  provision: 
"That  suits  in  equity  shall  not  be  sustained  in 
either  of  the  courts  of  the  United  States,  in  any 
case  where  plain,  adequate,  and  complete  remedy 
maybe  had  at  law."  This  sixteenth  section  has 
been  the  subject  of  consideration  by  the  Supreme 
Court  in  several  cases.  In  the  case  of  Boyce  v. 
Grundy,  3  Peters,  210,  it  was  held  that  this  section 
was  merely  declaratory,  and  made  no  change  in 
equitable  remedies ;  that,  independent  of  this  sec- 
tion, a  court  of  equity,  upon  the  principles  which 
govern  these  courts,  cannot  entertain  a  suit  in  a 
case  where  there  is  "  plain,  adequate,  and  complete 
remedy  at  law,"  and  therefore  they  held  that  this 
was  a  mere  declaration  of  a  principle  which  would 
have  existed  outside  of  the  statute.  They  have 
also  decided,  in  the  case  of  Robinson  v.  Campbell, 
3  Wheaton,  212,  that  the  remedy  at  law  here  spoken 
of  is  a  remedy  at  the  common  law  of  England,  and 
has  no  reference  whatever  to  the  common  law  or 
the  statute  law  of  the  States.  You  are  aware  that 
in  all  the  States,  probably,  —  certainly  in  most  of 
them,  — ■  there  are  statute  remedies  which  go  much 
beyond  the  remedies  afforded  by  the  common  law 
of  England,  and  which  are  intended  to,  and  do, 
have  the   effect  of  giving  equitable   remedies  to  a 


170      JUKISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

very  considerable  extent.  Now,  these  State  statutes, 
or  any  alterations  in  the  common  law  of  the  State, 
by  custom  or  otherwise,  —  many  of  which  exist  in 
Pennsylvania,  —  the  court  held  are  not  to  be  con- 
sidered. It  is  no  objection  to  maintaining  a  bill 
in  equity  in  a  Federal  Court  in  Pennsylvania, 
that,  according  to  the  common  law  of  Pennsylvania, 
an  action  of  replevin  may  be  treated  like  a  bill  for 
specific  performance,  and  given  the  same  remedy. 
You  are  to  look  into  the  common  law  of  England, 
not  the  laws  of  the  several  States,  in  considering 
whether  a  "plain,  adequate,  and  complete  remedy 
may  be  had  at  law." 

Then  they  have  also  held,  in  this  case  of  Boyce 
v.  Grundy,  to  which  I  just  referred,  that  the 
remedy  at  law  must  be  as  efficient,  complete,  and 
prompt  as  the  remedy  in  equity.  The  fact  that 
there  is  some  remedy  at  law,  the  fact  that  that 
remedy  has  been  deemed  sufficient,  according  to 
the  principles  of  the  common  law,  would  not  pre- 
vent a  court  of  equity,  under  this  section,  from 
entertaining  jurisdiction.  The  remedy  must  be  as 
prompt,  complete,  and  efficient  at  law  as  that  which 
is  sought  in  equity.^ 

There  is  some  special  legislation,  also,  on  the 
subject  of  injunctions  by  courts  of  equity,  which  it 
is  necessary  to  notice.  It  is  the  Act  of  March  2, 
1793,  §  5,  and  is  found  in  1  Statutes  at  Large, 
334:  — 

"Writs  of  ne  exeat  and  of  injunction  may  be 
granted  by  any  judge  of  the  Supreme  Court  in  cases 

1  Tlie  language  of  the  sixteenth  section  of  the  Judiciary  Act  of 
1789  is  repeated,  in  lutidem  verbis,  iu  §  723  of  the  Revised  Statutes. 


THE   CIRCUIT   COURTS.  171 

where  they  might  be  granted  by  the  Supreme  or  a 
Circuit  Court;  but  no  writ  of  ne  exeat  shall  be 
granted  unless  a  suit  in  equity  be  commenced,  and 
satisfactory  proof  shall  be  made  to  the  court  or 
judge  granting  the  same,  that  the  defendant  designs 
quickly  to  depart  from  the  United  States ;  "  —  the 
object  of  that  writ  being,  as  you  know,  to  prevent 
a  person  who  is  a  debtor  from  going  out  of  the 
country ;  it  is  called  a  writ  of  ne  exeat  because  it 
commands  him  not  to  go  out  of  the  country. ^  Then 
follows  this  provision  in  regard  to  injunctions : 
"Nor  shall  a  writ  of  injunction  be  granted  to  stay 
proceedings  in  any  court  of  a  State ;  nor  shall  such 
writ  be  granted  in  any  case  without  reasonable 
previous  notice  to  the  adverse  party,  or  his  attorney, 
of  the  time  and  place  of  moving  for  the  same." 

Under  that  last  provision  it  has  been  the  practice 
of  the  courts  of  the  United  States,  when  a  bill  is 
filed  for  a  preliminary  injunction,  or  a  motion  made 
for  a  preliminary  injunction,  to  issue  a  rule,  as  it 
is  called,  or  an  order  of  notice  to  the  opposite  party 
to  appear  on  a  day  named  and  show  cause  why  the 
temporary  injunction  should  not  issue  ;  and  the  prac- 
tice in  this  circuit  (it  may  be  otherwise  in  other  cir- 
cuits) is  that  on  the  return  day  of  the  notice,  when 
the  defendant  appears  by  his  counsel,  an  order  is 
made  by  the  court  allowing  a  certain  time  for  the 
complainant  to  file  his  papers  in   support  of  his 

1  Writs  of  ne  exeat  are  now  regulated  by  §  717  of  the  Revised 
Statutes.  They  may  be  granted  by  a  Circuit  Court,  or  by  any  Cir- 
cuit Justice,  or  Judge,  but  only  when  a  suit  in  equity  has  been  com- 
menced, and  satisfactory  proof  is  made  that  the  defendant  designs 
quickly  to  depart  from  the  United  States. 


172      JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

motion,  allowing  a  further  time  for  the  respondent 
to  reply  to  those  affidavits,  and  still  further  time 
for  the  complainant  to  put  in  any  rebutting  affi- 
davits in  answer  to  those  of  the  respondent,  if  he 
sees  fit.  This  practice  is  particularly  applicable 
in  patent  cases,  which  constitute  a  very  large  part 
of  the  causes  which  come  before  the  Circuit  Court 
of  the  United  States  under  its  equity  jurisdiction, 
in  this  part  of  the  country,  in  the  first,  second, 
third,  and  fourth  circuits.  In  other  parts  of  the 
country,  in  the  South  and  extreme  West,  they 
are  less  frequent,  but  in  this  part  of  the  country 
they  constitute  a  very  large  part  of  the  business 
of  the  court  in  equity,  so  far  as  injunctions  are 
concerned. 1 

There  is,  however,  in  the  seventh  section  of  the 
Act  of  June  1,  1872,  a  provision  which  qualifies  this 
statute :  — 

"  Whenever  notice  is  given  of  a  motion  for  an 
injunction  out  of  a  Circuit  or  District  Court  of  the 
United  States,  the  court  or  judge  thereof  may,  if 
there  appear  to  be  danger  of  irreparable  injury 
from  delay,  grant  an  order  restraining  the  act 
sought  to  be  enjoined  until  the  decision  upon  the 
motion.  Such  order  may  be  granted  with  or  with- 
out security,  in  the  discretion  of  the  court  or  judge: 
Provided,  that  no  justice  of  the  Supreme  Court 
shall  hear  or  allow  any  application  for  an  injunc- 
tion or  restraining  order,  except  within  the  circuit 
to  which  he  is  allotted,  and  in  causes  pending  in 
the  circuit  to  which  he  is  allotted  or  in  such  causes 

1  As  to  injunctions  in  jiatent  and  copyright  cases,  see  Eevised 
Statutes,  §§  4921,  4970. 


THE   CIIICUIT   COURTS.  173 

at  such  place  outside  of  the  circuit  as  the  parties 
may  in  writing  stipulate,  except  in  causes  where 
such  application  cannot  be  heard  by  the  circuit 
judge  of  the  circuit  or  the  district  judge  of  the 
district."! 

This  makes  it  discretionary,  as  you  perceive, 
with  a  judge,  when  applied  to,  to  grant  what  they 
call  a  "restraining  order,"  which  means  an  injunc- 
tion, or  means  nothing;  and  this  "restraining 
order  "  may  be  so  framed  as  to  prevent  irreparable 
injury  until  the  motion  for  the  injunction  can  be 
heard.  That  is,  I  should  think,  a  very  proper  pro- 
vision, because  there  are  cases  in  which,  as  soon  as 
notice  is  given  of  an  application  for  an  injunction, 
the  other  party  has  it  in  his  power  to  defeat  all 
benefit  from  the  proceeding ;  as,  for  instance,  where 
a  bill  is  filed  to  enjoin  the  negotiation  of  a  note  or 
bill  of  exchange.  If  notice  is  given  of  that  appli- 
cation, the  party  can  at  once  negotiate  the  note  or 
bill,  and  thus  the  whole  proceeding  becomes  use- 
less. The  purpose  of  this  legislation  was  to  enable 
the  court,  ex  imrte,  to  grant  such  "restraining 
order  "  until  they  could  hear  the  motion  for  an 
injunction.^ 

You  will  have  observed,  as  I  read  [the  former] 
section,  it  provides,  "nor  shall  a  writ  of  injunction 
be  granted  to  stay  proceedings  in  any  court  of  a 
State.  "3     The  purpose  of  the  framers  of  this  act, 

1  These  provisions  are  re-enacted  in  §§  718,  719,  of  the  Revised 
Statutes. 

2  See  also  ante,  pp.  82,  88. 

^  This  is  now  Rev.  Stat.  §  720,  and  to  the  words  in  the  text  are 
added  these :  "  Except  in  cases  where  such  injunction  may  he  au- 
thorized by  any  law  relating  to  proceedings  in  bankruptcy." 


174      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

which  purpose  has  been  preserved  in  its  adminis- 
tration,  was  to  prevent  any  interference  between 
the  courts  of  the  United  States  and  the  courts  of 
the  States,    and  to  withhold  the   power  from  the 
courts  of  the  United  States  to  interfere  with   the 
proceedings  of  the  courts  of  the  States  except  by 
the  means  whicli  I  have  previously  pointed  out  to 
you,  —  a  writ  of  error  to  the  State  court  from  the 
Supreme  Court  of  the  United  States  when  certain 
questions  were  involved,  and  the  power  of  citizens 
of  other  States,  and  also  of  the  officers  of  the  United 
States,  to  remove  cases  from  the  State  courts,  for 
trial,  to  the  United  States  courts.     With  the  excep- 
tion of  these  proceedings,  the  United  States  courts 
have  no  power  to  interfere  with  the  courts  in  the 
States ;  nor,  on  the  other  hand,  have  the  courts  of 
the  States  any  power  to  interfere  with  the  courts  of 
the  United  States.     There  is  no  explicit  negative 
provision  in  the  Constitution  or  laws  of  the  United 
States  to  that  effect ;  but  it  has  been  decided  by  the 
Supreme  Court  in  several  cases  that  the  courts  of 
the  States  cannot  enjoin  any  proceedings,  or  inter- 
fere  in   any  way  with  the   courts    of   the   United 
States.     The   earliest  case  on  this  subject  is  the 
case  of  McKim  v.   VoorJiies,  7  Cranch,  279.     There 
was  a  previous  case,  however,  which  related  to  the 
subject,   of  Di(/gs  v.    Wolcott,  4  Cranch,   179;  and 
there  is  a  more  recent  one,   of  Peek  v.  Jenness,   7 
Howard,  625.     If  you  look  into  these  cases  you  will 
see  that  the  view  taken  by  the   Supreme  Court  of 
the  United  States  is,  that  subjects  within  the  juris- 
diction of  the  Circuit  Courts  of  the  United  States, 
or  any  other  court  of  the  United  States,   are  just 


THE   CIRCUIT   COURTS.  175 

as  much  removed  from  the  control  of  the  State 
courts  as  though  they  were  in  a  foreign  country; 
that,  although  they  are  in  the  same  territory,  they 
are  under  a  different  government  and  a  different 
system  of  laws,  and  the  State  courts  have  no 
authority  whatever  to  interfere  with  them. 

Another  subject  of  some  importance,  and  which 
has  occasionally  excited  a  good  deal  of  interest,  is 
the  power  of  the  courts  of  the  United  States  to 
punish  for  contempt  of  their  authority.  This  was 
originally  provided  for  by  the  Judiciary  Act,  §  17: 
"All  the  said  courts  of  the  United  States  shall  have 
power  to  grant  new  trials,  .  .  .  and  to  punish  by 
fine  or  imprisonment,  at  the  discretion  of  said 
courts,  all  contempts  of  authority  in  any  cause  or 
hearing  before  the  same."  A  case  occurred  in 
which  the  District  Judge  of  the  State  of  Missouri 
punished  a  lawyer  for  a  contempt,  and  he  was 
impeached  for  his  conduct  on  that  occasion,  —  not 
successfully,  because  the  constitutional  majority  of 
the  Senate  failed  to  agree  that  he  had  committed 
an  impeachable  offence ;  but  in  consequence  of  what 
then  occurred  an  act  was  passed  which  is  found  in 
4  Statutes  at  Large,  487.  It  is  the  Act  of  March  2, 
1831,  entitled,  "An  Act  declaratory  of  the  law 
concerning  contempts  of  court ; "  and  it  provides 
that  "  the  power  of  the  several  courts  of  the  United 
States  to  issue  attachments  and  inflict  summary 
punishments  for  contempts  of  court  shall  not  be  con- 
strued to  extend  to  any  cases  except  the  misbe- 
havior of  any  person  or  persons  in  the  presence  of 
the  said  courts,  or  so  near  thereto  as  to  obstruct 
the  administration  of  justice,   the   misbehavior  of 


176      JURISDICTION,    TEACTICE,   AND   JURISPEUDENCE. 

any  of  the  officers  of  said  courts  in  their  official 
transactions,  and  the  disobedience  or  resistance  by 
any  officer  of  the  said  courts,  party,  juror,  witness, 
or  any  other  person  or  persons,  to  any  lawful  writ, 
process,  order,  rule,  decree,  or  command  of  the 
said  courts." 

The  common-law  authority  of  the  courts,  as  it 
has  been  exercised  in  England  and  in  this  country, 
and  as  it  was  exercised  by  Judge  Peck  in  the  case 
I  spoke  of,  extended  much  wider  than  this.  It 
extended  so  far  as  to  punish  the  editor  of  a  news- 
paper for  publishing  an  account  of  a  trial  while  the 
trial  was  in  progress,  and  there  were  many  other 
cases  to  which  this  power  to  punish  for  contempt 
extended.  It  is  now  restricted  either  to  the  action 
of  the  court  upon  its  own  officers,  to  prevent  them 
from  committing  a  breach  of  official  duty,  or  to 
contempts,  as  they  are  called,  in  the  presence  of 
the  court,  or  so  near  to  the  court  as  to  disturb  its 
proceedings,  or  to  some  misconduct  of  a  juror  or 
other  person  who  disobeys  an  order  of  the  court. 
If  a  juror,  for  instance,  or  a  witness,  disobeys  the 
order  of  the  court  to  attend,  a  process  of  attachment 
will  issue  against  him  under  the  provisions  of  this 
statute;  but,  with  the  exception  of  these  cases,  the 
courts  of  the  United  States  have  no  power  to  punish 
for  contempt.  1 

The  internal  revenue  laws  of  the  United  States 
have  afforded  subjects  of  jurisdiction,  heretofore, 
by  suits  to  recover  back  moneys  which  the  persons 

1  The  power  to  punish  for  contempts  is  now  regulated  by  §  725  of 
the  lievised  Statutes,  substantially  as  stated  in  the  text.  See  also 
§  4975. 


THE    CIRCUIT   COURTS.  177 

taxed  considered  not  to  be  legally  demanded  of 
them.  There  was  an  act  passed  on  the  30th  of 
June,  1864,  which  l)y  its  fiftieth  section  provided 
that  the  Circuit  Courts  of  the  United  States  should 
have  jurisdiction  of  these  suits  in  the  same  manner 
as  of  suits  to  recover  back  moneys  exacted  by  col- 
lectors of  customs  contrary  to  law.  But  I  suppose 
it  was  found  that  this  gave  rise  to  an  inconvenient 
number  of  suits,  and  the  collection  of  the  internal 
revenue  was  so  important,  and  at  the  same  time 
attended  vvith  so  many  embarrassments,  that  Con- 
gress, on  the  13th  of  July,  1866,  repealed  this  sec- 
tion ;  so  that  there  is  no  longer  any  remedy  whatever 
in  the  courts  of  the  United  States  for  persons  who 
have  had  money  illegally  exacted  from  them  by  an 
officer  of  the  internal  revenue  department,  —  cer- 
tainly a  most  material  defect  in  the  law.  Notwith- 
standing this,  such  a  party  is  not  without  remedy. 
He  may  bring  a  suit  in  the  State  courts,  and  then, 
under  the  provision  of  law  which  I  shall  refer  to 
presently,  if  the  officer  who  is  sued  sees  fit  to  do  so, 
he  can  remove  the  suit  into  the  Circuit  Court,  so 
that  at  last,  in  almost  all  cases,  these  suits  would 
come  there.  ^ 

1  By  the  Revised  Statutes,  §  629,  Subdivision  4,  original  juris- 
diction is  conferred  on  the  Circuit  Courts  "  Of  all  suits  at  law  or  in 
equitij,  arisimj  under  any  act  providing  for  revenue  from  imports  or 
tonnage,  except  civil  causes  of  admiralty  and  maritime  jurisdictit)n, 
and  seizures  on  land  or  on  waters  not  within  admiralty  and  mari- 
time jurisdiction,  and  except  suits  for  penalties  and  forfeitures;  of  all 
causes  arising  under  am/  law  providing  internal  revenue,  and  of  all 
causes  arising  under  the  postal  laws."  [Cases  arising  under  the 
external  revenue  laws  are  now  heard  by  General  Appraisers,  from 
whose  decision  an  appeal  lies  to  the  Circuit  Court.  See  the  Act 
approved  June  10,  1890,  26  Stat.  131,  138,  Ch.  407.] 

12 


178      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

This  subject  was  very  fully  discussed  and  consid- 
ered in  the  case  of  Assessor  v.  Osbornes,  9  Wallace, 
567, where  you  will  find  all  the  provisions  of  law 
commented  upon,  and  the  present  state  of  the  law 
upon  that  subject  clearly  explained. 

I  have  already  drawn  your  attention  to  the  fact 
that  general  criminal  jurisdiction  has  been  given 
by  the  Judiciary  Act  to  the  Circuit  Courts  of  the 
United  States  over  all  crimes  and  offences  against 
the  laws  of  the  United  States;  but  besides  this 
general  provision  there  has  been  a  series  of  acts 
passed,  mainly  in  connection  with  the  fourteenth 
amendment  to  the  Constitution,  designed  to  secure 
to  the  freedmen  their  rights  as  citizens  of  the 
United  States.  I  do  not  think  it  would  be  worth 
while  for  me  to  go  into  details  concerning  these  acts, 
but  merely  to  say  that  they  all  relate  to  this  four- 
teenth amendment,  and  to  give  you  a  reference  to 
them,  so  that,  if  you  should  have  occasion,  you  can 
turn  to  them  without  difficulty.  The  earliest  one 
is  14  Statutes  at  Large,  27,  §  3 ;  another  one,  14 
Statutes  at  Large,  46,  §§3,  5 ;  another,  16  Statutes 
at  Large,  438,  §  15 ;  still  another  in  the  same  book, 
146,  §  23;  another,  143,  §  12;  and  still  another, 
142,  §  8.  Then  the  most  recent  act  is  17  Statutes 
at  Large,  13,  §  1,  and  15,  §  6.  All  these  relate  to 
those  crimes  and  offences  which  are  created  by 
these  statutes  in  order  to  protect  the  right  of  the 
freedmen  to  vote,  as  well  as  their  personal  safety.^ 
There  is  also  a  recent  act  passed,  I  suppose  mainly 

1  For  the  jurisdiction  in  this  class  of  cases,  consult  Revised 
Statutes,  §  629,  and  the  title  "  Civil  Rights."  [See  also  sections  1786, 
1977,  1979,  1981,  2010,  and  18  Stat.  336,  Chap.  114.] 


THE   CIRCUIT   COURTS.  179 

from  the  same  motives,  on  the  10th  of  June,  1872, 
which  punishes  attempts  to  influence,  intimidate, 
or  impede  any  grand  or  petit  juror  in  the  course  of 
his  duties,  or  in  connection  with  his  duties.  This 
law  also  makes  the  Circuit  Court  one  of  the 
tribunals  to  try  the  offences.^ 

You  are  aware,  I  dare  say,  that  great  complaints 
have  been  made  from  time  to  time,  of  frauds  per- 
petrated in  the  procurement  of  real  or  simulated 
papers  showing  the  naturalization  of  persons  with 
a  view  to  their  voting;  and  in  16  Statutes  at 
Large,  255,  §  4,  is  a  law  which  punishes  all 
fraudulent  acts  connected  with  this  subject,  and 
gives  the  Circuit  Court  jurisdiction  to  try  the 
offences.  2 

I  believe  I  have  now  gone  through,  sufficiently  in 
detail,  with  all  that  part  of  the  subject  which 
relates  to  the  jurisdiction  of  the  Circuit  Court  by 
reason  of  the  character  of  the  parties,  either  in 
original  suits  brought  there,  or  suits  removed  there 
under  the  different  statutes  which  I  have  read  to 
you ;  and  1  now  turn  to  a  different  subject-matter. 

There  is  another  law  giving  the  Circuit  Court  of 
the  United  States  jurisdiction  over  cases  pending 
in  the  State  courts,  which  has  an  interesting  his- 
torical origin,  and  which  is  a  law,  or  might  prove 
to  be  a  law,  of  very  great  importance.  It  is  the 
Act  of  August  29,  1842,  and  is  found  in  5  Statutes 
at  Large,  539. ^  The  substance  of  it  is,  that  if  a 
person  should  be  indicted,  or  stands  indicted,  in  a 

1  See  Hevised  Statutes,  §§  5404-5406. 

2  See  Revised  Statutes,  §  5424,  et  seq. 

3  Tliis  act  is  substantially  embodied  in  Eev.  Stat.  §  753. 


180      JURISDICTION,    PKACTICE,   AND   JURISPRUDENCE, 

State  court  for  an  act  which  is  avowed  by  a  foreign 
government  as  its  act,  thereupon  a  petition  may  be 
presented  to  the  Circuit  Court  held  in  the  District 
where  he  is  thus  indicted  in  the  State  court,  and 
he  may  be  brought  by  a  writ  of  habeas  corpus  before 
the  Circuit  Court,  and  either  released  on  bail,  or 
they  may  take  such  order  as  they  deem  proper  in 
the  case.  That  law  arose  out  of  what  was  called 
McLeod's  case,  who  was  indicted  in  one  of  the 
counties  in  New  York,  at  Utica,  I  think,  for  parti- 
cipating in  the  burning  of  the  Caroline,  a  steamer 
which  was  burned  in  the  Niagara  River  by  a  party 
who  came  over  from  Canada  for  that  purpose,  dur- 
ing the  troubles  existing  in  1842  on  that  frontier. 
This  steamer  had  been  employed  in  carrying  men 
and  military  supplies  to  an  island  in  the  Niagara 
River,  from  which  it  was  supposed  it  was  intended 
to  make  a  military  expedition  into  Canada,  and  a 
party  came  over  and  burned  the  steamer  in  the 
night,  and  in  the  course  of  this  enterprise  one  man 
lost  his  life.  McLeod,  who  had  come  over  from 
Canada  into  New  York,  was  indicted  for  murder  as 
having  participated  in  this  act,  which  resulted  in 
the  death  of  this  person.  He  Avas  tried  (this  was 
before  this  act  of  Congress  was  passed)  in  the  State 
court,  and  was  acquitted  on  the  ground  that  he  was 
not  present,  but  it  was  a  very  threatening  matter  at 
the  time.  The  British  government  avowed  the  act 
as  being  justifiable  under  the  circumstances,  and 
this  act  of  Congress  was  passed  immediately  after 
the  conclusion  of  that  case,  for  the  purpose  of  let- 
ting all  such  cases  within  the  jurisdiction  of  the 
national   government,    which   alone  can  deal  with 


THE   CIRCUIT   COURTS.  181 

foreign  governments  in  a  diplomatic  way,  the 
existence  of  the  several  States  not  being  recognized 
by  foreign  governments  for  any  purpose  of  negotia- 
tion or  responsibility. 

Besides  this  appellate  power  which  the  Circuit 
Courts  exercise  over  final  judgments  and  decrees  of 
the  District  Court,i  they  have  an  appellate  power 
over  the  decrees  and  proceedings  of  that  court  in 
bankruptcy.  2  The  Bankruptcy  Act,  in  its  second 
section,  found  in  14  Statutes  at  Large,  518,  gives  to 
the  Circuit  Courts  a  general  superintendence  over 
all  proceedings  of  the  District  Court  in  bankruptcy, 
which  superintendence  is  to  be  invoked  by  any 
party  aggrieved  through  a  petition  filed  in  the 
Circuit  Court,  the  proceedings  upon  which  are 
summary.  It  is  not  like  an  appeal,  or  writ  of 
error,  but  it  is  a  somewhat  informal  application  by 
a  petition,  the  party  stating  that,  under  such  and 
such  states  of  fact  in  the  District  Court,  he  is 
aggrieved,  and  prays  the  Circuit  Court  to  take  the 
subject  into  consideration;  and  under  such  a  form 
of  proceeding  the  Circuit  Court  exercises  a  general 
superintendence  over  all  the  proceedings  of  the  Dis- 
trict Court  in  the  administration  of  the  Bankruptcy 
Law.  3 


1  [This  power  was  taken  away  by  the  Act  of  1891,  see  page  67, 
supra.l 

2  [See  notes  2  and  3,  pae^e  102,  supra.] 

^  [The  Circuit  Courts  also  have  jurisdiction,  withoiit  regard  to  the 
amount  involved,  of  suits  brought  under  the  following  special  acts  : 
the  law  against  Trusts  and  Monopolies,  26  Stat.  209  ;  the  Contract 
Labor  Law,  26  Stat.  1084 ;  the  Interstate  Commerce  Law,  24  Stat. 
379  ;  the  law  under  which  land  may  be  condemned  for  national  uses, 
and  that  to  prevent  the  unlawful  occupancy  of  public  lands,  25  Stat. 


182      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

357.     The  jurisdiction  in  the  Circuit  Court  of  suits  brought  under 
the  Civil  Kights  Act  is  expressly  saved  by  the  Act  of  1887-1888. 

The  Circuit  Court  also  has  concurrent  jurisdiction  with  the  Court 
of  Claims  of  certain  suits  against  tlie  United  States,  24  Stat.  50.") ; 
aud  exclusive  jurisdiction  of  some  minor  suits  such  as  those  for  the 
collection  of  penalties  for  the  illegal  carrying  of  passengers  in  mer- 
chant vessels  ;  but  this  court  has  no  general  jurisdiction  to  recover 
penalties  or  forfeitures ;  that  belongs  to  the  District  Court.] 


THE   REMOVAL   OF   SUITS.  183 


CHAPTER  YI. 

THE   REMOVAL    OF   SUITS. 

[The  laws  now  in  force  governing  the  fetnoval  ol 
suits  from  the  State  Courts  to  the  Circuit  Court 
are  the  following:  The  Act  of  August  13,  1888 
(correcting  that  of  March  3,  1887),  which  is 
25  Stat.  433,  chap.  866;  and  Revised  Statutes, 
§§  641,  642,  643.  Prior  to  the  year  1887,  the 
removal  of  causes  had  been  governed  by  four  main 
acts,  —  the  Judiciary  Act  of  1789,  the  Acts  of  1866 
and  1867,  both  of  which  related  to  special  matters, 
and  the  Act  of  1875,  which  dealt  with  the  whole 
subject,  and  repealed  the  Act  of  1789.  The  pres- 
ent act,  that  of  1887-1888,  amended  and  substan- 
tially repealed  the  Act  of  1875. 

The  Act  of  1866  was,  as  I  have  said,  of  a  special 
nature.  It  provided  that  in  certain  cases  where 
one  or  more  of  several  defendants  were  citizens  of  a 
State  other  than  that  in  which  the  suit  was  brought, 
the  plaintiff  being  a  citizen  of  that  State,  such 
defendants  might  remove  the  cause,  so  far  as  they 
were  concerned,  to  the  Circuit  Court,  leaving  the 
plaintiff  to  proceed  against  the  remaining  defend- 
ants in  the  State  court.  The  reason  for  this  pecu- 
liar provision  was  that  Congress  doubted  its  power 
to  authorize  the  removal  of  the  whole  case,  under 


184      JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

such  circumstances,  for,  if  it  were  removed  as  to 
all  of  the  defendants,  the  case  would  then  be  one, 
in  part,  between  citizens  of  the  same  State.  This, 
it  was  thought,  would  be  unconstitutional,  because 
the  Constitution  does  not  extend  the  judicial  power 
of  the  United  States  to  controversies  between  citi- 
zens of  the  same  State,  except  where  a  Federal 
question  or  some  matter  of  admiralty  jurisdiction 
is  involved.     This  act  was  repealed  by  the  Act  of 

1875.1  Both  that  act,  however,  and  the  present 
act  contain  similar  provisions  regarding  "separable 
controversies. " 

The  Act  of  1867  was  a  fruit  of  the  Civil  War.  It 
provided  for  the  removal  of  suits  by  non-resident 
plaintiffs  or  defendants  on  the  ground  that  by  reason 
of  local  influence  or  prejudice  they  could  not  obtain 
a  fair  hearing  in  the  State  court.  This  act  was 
embodied  in  the  -Revised  Statutes,  as  sect.  639,  cl. 
3,  and  it  was  not  repealed  or  altered  by  the  Act  of 

1875.2  But  it  was  repealed  by  the  present  act,^  in 
which  there  is  inserted  a  similar  provision  giving 
the  right  of  removal  to  defendants  only.  Aside, 
therefore,  from  these  particular  acts  of  1866  and 
1867,  the  right  of  removal  was  established  by  the 
Judiciary  Act  of  1789,  and  repealed  and  re-estab- 
lished by  the  acts  of  1875  and  of  1887-1888. 

We  have  seen  already  that,  so  far  as  the  original 
jurisdiction  of  the  Circuit  Court  is  concerned,  the 
intent  of  the  Act  of  1875  was  to  enlarge,  and  the 
intent  of  the  Act  of  1887-1888  was  to  restrict  it. 

1  [Hyde  v.  Ruble,  104  U.  S.  407.] 
•  2  [Hanrick  v.  Hanrick,  153  U.  S.  192.] 
3  [Fisk  V.  Henarle,  142  U.  S.  459.] 


THE   REMOVAL   OF   SUITS.  185 

This  is  Gqually  true  of  those  parts  of  these  acts 
which  give  to  the  Circuit  Court  jurisdiction  by 
removal  from  State  tribunals.  ^  The  chief  points 
of  difference  between  the  several  statutes  will 
appear  as  we  go  along;  but  first  it  might  be  well 
to  state  some  general  principles  which  regulate  the 
law  of  removal. 

The  power  of  State  legislatures  to  impose  restric- 
tions upon  the  removal  of  suits  has  been  discussed  in 
several  leading  cases,  the  first  two  of  which  arose 
under  a  statute  of  Wisconsin.  This  statute  pro- 
vided that  any  foreign  insurance  company  intend- 
ing to  do  business  in  that  State  should  appoint  an 
agent  there  for  the  service  of  process  upon  it,  and 
also  make  a  written  agreement  with  the  State  not 
to  remove  to  the  Circuit  Court  any  suit  which  might 
be  brought  against  it  in  the  State  courts.  The 
statute  further  provided  that  if  any  insurance  com- 
pany violated  this  agreement  its  license  should  be 
revoked  by  the  Secretary  of  State.  In  the  first  case 
under  this  statute  a  suit  had  been  removed  by  a 
foreign  insurance  company,  contrary  to  its  agree- 
ment; but  the  State  court,  nevertheless,  went  on 
and  pronounced  judgment  against  the  company. 
The  United  States  Supreme  Court  held  that  this 
judgment  was  void,  because  the  agreement  not  to 
remove  was  illegal.  No  man,  they  declared,  can 
bind  himself  in  advance  to  forego  the  benefit  of 
such  courts  as  are  legally  open  to  him.  "  He  can- 
not barter  away  his  life,  his  freedom,  or  his  consti- 
tutional rights.  "2     The  second  suit^  was  an  appeal 

1  [F!sk  V.  Hetmri'e,  142  U.  S.  459,  467.] 

2  [Home  Insitnnice  Co.  v.  Morse,  20  Wall.  445.] 

''  [Doyle  V.  Continental  Insurance  Co.,  94  U,  S.  535.] 


186      JUKISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

from  an  injunction  restraining  the  Secretary  of 
State  from  revoking  the  license  of  an 'insurance 
company  which  had  violated  the  statute  in  question. 
The  United  States  Supreme  Court  held  that  the 
injunction  was  improperly  granted.  They  declared 
that  the  State  had  a  right  to  impose  the  terms  upon 
which  foreign  corporations  should  be  permitted  to 
do  business  within  its  borders.  They  held  further 
that  although  that  part  of  the  statute  which  required 
a  stipulation  by  foreign  corporations  to  refrain  from 
removing  suits  was  unconstitutional,  yet  that  part 
which  provided  that  if  a  foreign  corporation  did  so 
remove  a  suit,  its  license  should  be  revoked,  was 
not  unconstitutional.  The  court  said :  "The  argu- 
ment that  the  revocation  in  question  is  made  for  an 
unconstitutional  reason  cannot  be  sustained.  The 
suggestion  confounds  an  act  with  an  emotion  or  a 
mental  proceeding  which  is  not  the  subject  of 
inquiry  in  determining  the  validity  of  a  statute." 
The  point  thus  taken  was  ingenious,  but  perhaps  a 
little  sophistical.  Justices  Bradley,  Miller,  and 
Swayne  dissented  from  the  decision. 

In  a  subsequent  case,^  a  similar  statute  enacted  in 
Iowa,  was  in  question.  This  statute  provided  that 
if  any  foreign  corporation  violated  its  agreement 
not  to  remove  suits,  its  license  to  do  business  should 
thereby  become  void,  and  any  agent  of  the  corpora- 
tion who  continued  thereafter  to  transact  its  busi- 
ness in  the  State  was  made  liable  to  fine  and 
imprisonment.  An  agent  was  imprisoned  under 
this  statute,  and  the  Supreme  Court  held  that  it 
was  unconstitutional,  and  released  him  upon  a  writ 

J  [Barron  v.  Burnside,  121  U.  S.  186.] 


THE   REMOVAL   OF   SUITS.  187 

of  habeas  corpus.  As  to  Doyle  v.  Continental  Insur- 
ance Company,  the  court  said:  "The  point  of  the 
decision  seems  to  have  been  that  as  the  State  had 
granted  the  license,  its  officers  would  not  be  re- 
strained by  injunction,  by  a  court  of  the  United 
States,  from  withdrawing  it."  In  another  case,  a 
statute  of  Pennsylvania  was  considered.  This 
statute  attempted  to  confer  upon  a  State  court  ex- 
clusive jurisdiction  of  all  proceedings  involving 
the  settlement  of  estates  of  deceased  persons.  It 
was  held  that  the  statute  could  not  defeat  the  right 
to  bring  a  suit  in  the  Circuit  Court  or  to  remove  it 
to  that  court.  ^ 

These  cases  make  it  sufficiently  clear  that  the 
right  of  removal  cannot  be  taken  away  or  restricted 
by  State  legislation. 

Some  minor  points  of  a  preliminary  nature  should 
also  be  stated  here. 

The  jurisdiction  being  an  original  one,  not  appel- 
late, it  is  not  affected  by  the  Act  of  1891,  which 
took  away  all  appellate  jurisdiction  from  the  Cir- 
cuit Courts.  2  The  right  of  removal  is  not  a  vested 
right  of  property;  it  relates  to  the  remedy  only, 
and  consequently  a  Federal  statute  restricting  the 
right  of  removal  applies  to  cases  then  pending  in 
the  State  courts,  as  well  as  to  future  cases. ^  One 
of  several  defendants  cannot  remove  a  suit,  except 
in  cases  of  "separable  controversy,"  presently  to  be 
considered,  and  except  also  when  formal  or  unnec- 

1  [Clark  V.  Bever,  139  U.  S.  96.  See  also  Markwood  v.  Southern 
R>/.  Co.,  65  Fed.  Rep.  817.] 

2  [Dennistoitn  v.  Draper,  5  Blatch.  336.] 
8  [Manlei/  v.  OlncT/,  32  Fed.  Rep.  708.] 


188      JURISDICTION,    PRACTICE,    AND   JURISPRUDENCE. 

essary  parties  are  joined  as  defendants.^  Other- 
wise, it  is  doubtful  if  a  single  defendant  can  remove 
a  suit  even  when  the  other  defendants  have  de- 
faulted. ^  He  certainly  cannot  do  so  when  the  time 
within  which  the  other  defendants  must  petition 
for  removal  has  expired.^  A  purchaser  pendente  lite 
has  no  greater  right  of  removal  than  his  vendor 
had.*  A  merely  colorable  assignment  does  not 
confer  the  right  to  remove;  but  the  Circuit  Court 
cannot  take  jurisdiction  of  a  case  when  a  colorable 
assignment  has  been  made  expressly  to  prevent 
removal.^  A  conditional  application  for  removal 
has  no  legal  effect.^  The  removal  is  to  the  Circuit 
Court  for  that  district  where  the  suit  is  pending, 
although  it  may  have  originated  in  a  different  dis- 
trict.'^ Attachments  of  property,  bonds  of  indem- 
nity, and  writs  of  injunction  are  not  dissolved  by 
removal.^  As  to  waiver  of  the  right  to  remove,  see 
Amy  V.  Mammiy^  and  the  American  and  English 
Encyclopajdia  of  Law,  vol.  20,  p.  1010. 

I  now  proceed  to  state  the  substance  of  the 
Removal  Acts  which  are  at  present  in  force,  namely, 

1  [See  Infra,  p.  194.] 

2  [Sinclair  v.  Pierce,  50  Fed.  Rep.  851 ;  Putnam  v.  Ingraham,  114 
U.  S.  57.] 

3  [lloqcrs  V.  VanNortwick,  45  Fed.  Rep.  513.] 

4  [Jefferson  v.  Driver,  117  U.  S.  272  ] 

5  [Odkleij  V.  Goodnow,  118  U.  S.  43.  This  case  was  decided  under 
sect.  5  of  the  act  of  March  3,  1875;  aud  that  section,  excejjting  the 
])art  giving  an  appeal  to  the  Supreme  Court,  was  expressly  saved  by 
the  present  act.] 

c  [Manninc]  v.  Amy,  140  U.  S.  137.] 

7  [I less  V.  Reynolds,  113  U.  S.  73.] 

8  [Revised  Statutes,  646.] 
"  [144  Mass.  153.] 


THE    REMOVAL    OF    SUITS.  189 

the  Act  of  1887-1888  (25  Stat.  433),  and  Revised 
Statutes,  sects.  641,  642,  643.  The  Act  of  1887- 
1888  provides  as  follows:  — 

Removal  may  be  had  of  civil  suits  at  law  or  in 
equity,  which  might  have  been  begun  in  the  Circuit 
Court, ^  in  the  following  cases  :  — • 

(a)  Where  the  case  arises  under  the  Constitution, 
laws,  or  treaties  of  the  United  States,  and  more 
than  $2000,  exclusive  of  interest  and  costs,  are 
involved.     The  defendant  only  may  remove. 

{b)  Where  the  suit  is  between  citizens  of  different 
States,  and  more  than  $2000,  as  aforesaid,  are 
involved.  The  defendant,  if  a  non-resident  ^  of  the 
State,  may  remove. 

(c)  Where  the  suit  is  between  citizens  of  a  State 
and  foreign  states,  citizens,  or  subjects,  and  more 
than  '$2000,  as  aforesaid,  are  involved.  The  defend- 
ant, if  a  non-resident,  may  remove. 

(fZ)  Where  the  United  States  are  plaintiffs  or 
petitioners.  The  defendant,  if  a  non-resident,  may 
remove  without  regard  to  the  amount  involved. 

(e)  Where  the  suit  is  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different 
States,  and  more  than  $2000,  as  aforesaid,  are 
involved.     The  plaintiff  or  defendant  may  remove.^ 

1  [Reed  v.  Reed,  31  Fed.  Rep.  49.] 

2  [Martin  v.  Snyder,  148  U.  S.  663.] 

3  [The  statute,  in  this  case,  provides  that  "  any  one  or  more  of  tH'e 
plaintiffs  or  defendants,  before  the  trial  "  may  advise  the  court  "  that 
he  or  they  claim  and  shall  rely  upon  a  right  or  title  to  the  laud,  under 
a  grant  from  a  [particular]  State,"  producing  tlie  grant  or  a  copy 
thereof,  "  except  where  the  loss  of  public  records  prevents  its  pro- 
duction." Thereupon  lie  or  they  may  move  "  that  auy  one  or  more 
of  the  adverse  parties  inform  the  court  wliether  he  or  they  claim  a 
right  or  title  to  the  land,  under  a  grant  from  some  other  State.     If 


190      JURISDICTION,    PRACTICE,    AND    JURISPRUDENCE. 

(/)  Where  a  suit,  involving  more  than  -$2000,^ 
exclusive  of  interest  and  costs,  is  brought  in  a 
State  court,  by  a  citizen  of  that  State,  against  a 
defendant  who  is  neither  a  citizen  of  nor  a  resident 
in  that  State,  such  defendant  may  remove  the  suit 
"at  any  time  before  the  trial  thereof,"  if  he  can 
make  it  appear  to  the  Circuit  Court  that  owing  to 
local  influence  or  prejudice  he  cannot  obtain  justice 
in  the  State  court  in  which  the  cause  is  pending,  or 
to  wliich  it  may  he  removed  for  trial  under  the  laws 
of  the  State,  by  reason  of  such  prejudice  or  local 
influence.  2 

"Provided,  that  if  it  further  appear  that  said 
suit  can  be  fully  and  justly  determined  as  to  the 
other  defendants  in  the  State  court,  without  being 
affected  by  such  prejudice  or  local  influence,  and 
that  no  party  to  the  suit  will  be  prejudiced  by  a 
separation  of  the  parties,  said  Circuit  Court  may 
direct  the  suit  to  be  remanded,  so  far  as  relates  to 


'J 


the  party  so  called  upon  gives  information  "  that  he  or  they  do  claim 
under  such  grant  from  some  other  State,  any  one  or  more  of  the 
parties  moving  for  such  information  may  then  on  petition  and  bond 
(as  described  in  sec.  32)  remove  the  cause  to  the  Circuit  Court  of  the 
United  States  next  to  be  holden  in  such  district."  25  Stat.  435, 
chap.  866,  sect.  3.] 

1  [The  statute  is  obscure  upon  this  point,  and  it  was  held  at  first, 
in  some  circuits,  that  the  money  limit  did  not  apply  to  "  local 
influence"  cases.  Tlie  Supreme  Court,  however,  have  decided  other- 
wise.    See  In  re  Pennsi/Ivania  Co.,  137  U.  S.  451.] 

2  [The  sentence  italicized  contains  a  provision  which  was  not 
found  in  the  Act  of  1867.  It  merely  requires  the  defendant  to  make 
it  appear  to  the  Circuit  Court,  when  the  laws  of  the  State  provide 
for  a  change  of  venue  from  one  county  to  another,  that  local  preju- 
dice or  influence  would  operate  against  him  in  any  other  State  court 
tliat  might  be  open  to  him,  as  well  as  in  that  where  tlic  suit  is  pend- 
ing.    See  Rike  v.  Flojd,  42  Fed.  Rep.  247.] 


THE   KEMOVAL   OF   SUITS.  191 

such  other  defendants,  to  the  State  court,  to  be  pro- 
ceeded with  therein."  The  statute  then  provides 
that  after  a  case  has  thus  been  removed,  the  Circuit 
Court  shall,  upon  application  of  the  other  party, 
examine  into  the  facts  alleged  in  the  affidavit  for 
removal,  and  if  it  finds  that  the  alleged  prejudice 
or  local  influence  does  not  exist,  it  shall  remand 
the  case  to  the  State  court  whence  it  was  removed, 
and  from  the  decision  so  remanding  there  shall  be 
no  appeal. 

Many  decisions  have  been  made  upon  the  con- 
struction of  this  part  of  the  statute,  the  more  impor- 
tant of  which  will  be  stated  presently.  There  is 
one  more  class  of  cases  made  removable,  namely, 
those  which  contain  a  "separable  controversy,"  — 
which  were  first  provided  for  by  the  Act  of  1866. 
As  to  these  the  statute  runs  as  follows :  — 

"And  when  in  any  suit  mentioned  in  this  section 
[i.  e.,  any  of  the  suits  made  removable  by  the  statute] 
there  shall  be  a  controversy  which  is  wholly  between 
citizens  of  different  States,  and  which  can  be  fully 
determined  as  between  them,  then  either  one  or 
more  of  the  defendants  actually  interested  in  such 
controversy  may  remove  said  suit  into  the  Circuit 
Court  of  the  United  States  for  the  proper  district. "  ^ 

Under  this  head  the  plaintiff  cannot  remove. 
There  is  a  difference  of  opinion  as  to  whether  the 
defendant  must  be  a  non-resident  in  order  to  have 

1  [The  language  of  this  section  is  precisely  the  same  that  it  was  in 
the  Act  of  1875,  except  that  by  that  Act  the  right  of  removal  was 
given  to  plaintiffs,  as  well  as  to  defendants.  So  far  as  defendants 
are  concerned,  therefore,  all  decisions  made  under  the  Act  of  1875  as 
to  Separable  Controversies,  apply  also  to  the  present  law.] 


192      JURISDICTION,   PEACTICE,   AND   JUPJSPRUDENCE. 

the  right  of  removing  a  separable  controversy.^  An 
alien  defendant  cannot  remove  under  this  clause.^ 
A  suit  removable  on  this  ground  is  defmed  by  Judge 
Thayer  as  one  "  in  which  there  are  two  or  more 
controversies  or  causes  of  action  capable  of  separa- 
tion into  two  or  more  independent  suits,  one  of 
which  controversies  is  '  wholly  between  citizens  of 
different  States.  '  "  ^ 

A  separable  controversy,  it  must  be  remembered, 
is  not  removable  simply  because  it  is  separable. 
The  statute  provides  only  that  a  controversy  which 
would  under  the  statute  be  removable  by  defendants 

A.  B.,  and  not  by  their  co-defendants  C.  D.,  may 
still  be  removed  by  A.  B.,  provided  that  it  can  be 
separated,  and  can  fully  be  determined  against  A. 

B.  without  the  presence  of  C.  D. 

But  a  further  question  arises,  Does  the  "separa- 
tion "  refer  to  the  subject-matter  or  only  to  the 
parties  ?  Must  there  be,  in  effect,  two  causes  of 
action,  or  may  a  single  controversy  be  separated,  so 
far  as  the  defendants  are  concerned,  and  removed  by 
the  non-resident  defendants  ?  A  single  controversy 
is  certainly  not  removable  according  to  the  definition 
just  quoted,  or  according  to  the  opinion  of  the  Su- 
preme Court  upon  which  that  definition  is  founded. 
So  in  Bellaire  v.  Baltimore  ^  Ohio  R.  R.,^  the  pro- 

1  [Thurber  v.  Miller,  67  Fed.  Rep.  371,  holds  that  he  must  be. 
Contra,  Stanhrough  v.  Cool;  38  Fed.  Rep.  369.] 

'^  ^Merchants  Cotton  Pr-ess  ^^  Storage  Co.  v.  Insurance  Co.  of  North 
America,  151  U.  S.  368,  385.] 

3  [See  also  Fraser  v.  Jenntson,  106  U.  S.  191 ;  Torrence  v.  Shedd, 
144  U.  S.  527;  TF//.sow  v.  Osivcgo  Township,  151  U.  S.  56,  66;  Mer- 
chants^ Cotton  Press  <j-  Storage  Co.  v.  fnsnrnnce  Co.  of  North  America, 
151  U.  S.  368 ;  Earth  v.  Coler,  60  Fed.  Rep.  466.] 

*  [146  U.  S.  117.] 


THE    REMOVAL    OF    SUITS.  193 

ceecling  sought  to  be  removed  was  a  petition  to  con- 
demn land.  The  Supreme  Court  said  "  that  contro- 
versy was  not  the  less  a  single  and  entire  one,  because 
the  two  defendants  owned  distinct  interests  in  the 
land,  and  might  be  entitled  to  separate  awards  of 
damages ; "  thus  implying  that  a  single  controversy 
cannot  be  a  separable  controversy;  and  they  con- 
tinue :  "  The  ascertaining  of  those  interests  and  the 
assessment  of  those  damages  were  but  incidents  to 
the  principal  controversy,  and  did  not  make  that 
controversy  divisible  so  that  the  right  of  either 
defendant  could  be  fully  determined  by  itself,  apart 
from  the  right  of  the  other  defendant,  and  from  the 
main  issue  between  both  defendants  on  the  one  side 
and  the  plaintiff  on  the  other." 

Nevertheless,  there  are  authorities  which  hold 
that  a  single  controversy  may  be  a  "  separable  con- 
troversy," and  may  be  removed  by  a  non-resident 
defendant;  and  it  seems  to  be  a  fact  that  the  atten- 
tion of  the  Supreme  Court  has  never  been  called 
directly  to  this  point. ^ 

On  the  whole,  then,  it  appears  that  under  the 
present  law,  the  Act  of  1887-1888,  there  is  only 
one  case  in  which  the  plaintiff  may  remove  a  suit, 
namely,  where  the  suit  is  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different 
States,  and  more  thani3'2000,  exclusive  of  interest  and 
costs,  are  involved.  In  all  other  cases  the  defendant 
alone  can  remove ;  and  the  only  cases  in  which  the 
defendant,  who  is  a  resident  of  the  State  where  the 
suit  is  brought,  can  remove,  are  the  following :  — 

1  [See  Garner  v.  Second  National  Bank,  66  Fed.  Rep.  369,  where 

the  authorities  are  cited.] 

13 


194      JURISDICTION,    PRACTICE,    AND   JURISPRUDENCE. 

(a)  Where  the  case  arises  under  the  Constitution, 
laws,  or  treaties  of  the  United  States,  and  more 
than  S52000,  exclusive  of  interest  and  costs,  are 
involved ;  and  — 

{b)  Where  the  suit  is  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different 
States,  and  more  than  12000,  as  aforesaid,  are 
involved. 

Purely  formal  or  unnecessary  resident  defend- 
ants are  often  joined,  and  sometimes  for  the  express 
purpose  of  preventing  the  non-resident  defendants 
from  removing  the  suit.  It  is  held  in  such  cases 
that  the  non-resident  defendants  may  remove  the 
suit,  disregarding  the  others.^  So,  also,  the  fact 
that  parties  who  refuse  to  join  as  plaintiffs  are  made 
defendants,  will  not  prevent  other  defendants  who 
possess  the  requisite  citizenship  from  removing  the 
suit.  2 

Under  this  statute,  the  only  case  in  which  a  suit 
can  be  removed  without  regard  to  the  amount  in- 
volved is  that  where  the  United  States  are  plain- 
tiffs or  petitioners.  In  such  a  case,  the  defendant, 
if  a  non-resident,  may  remove. 

The  Act  of  1875,  which  the  present  act  super- 
seded, made  the  jurisdiction  of  removal  suits  very 
much  wider  than  it  had  been  before,  or  than  it  is 
now.  Under  that  act,  the  money  limit  was  only 
$500,  and  all  controversies  between  citizens  of 
different  States  were  removable,  whether  the  defend- 

1  [Arrowsmitk  v.  Nashville^  D.  R.  R.  Co.,  57  Fed.  Rep.  165;  Shat- 
tuch  V.  North  British  S,"  Mercantile  Insurance  Co.,  58  Fed.  Eep.  609. 
As  to  who  are  not  merely  formal  defendants,  see  Wilson  v.  Oswego 
Township,  151  U.  S.  56.] 

2  [Edfjerton  v.  Gilpin,  3  "Woods,  277.] 


THE   REMOVAL   OF   SUITS.  195 

ant  was  a  resident  or  non-resident ;  and  they  were 
removable  by  the  phiintiiJ  as  well  as  by  the  defend- 
ant. Under  that  act  also,  if  the  Circuit  Court, 
finding  that  a  case  had  improperly  been  removed, 
remanded  it  to  the  State  court,  there  was  an  appeal 
from  this  decision  to  the  Supreme  Court.  But 
under  the  present  act  there  is  no  appeal  from  such 
a  decision,^ 

I  have  now  stated  the  jurisdiction  in  removal 
cases,  which  is  conferred  by  the  Act  of  1887-1888. 
That  act  expressly  saved  Revised  Statutes,  sections 
641,  642,  643;  and  section  644  appears  not  to  have 
been  repealed  by  it.  These  sections  give  the  defend- 
ant, whether  resident  or  non-resident,  a  right  to 
remove  in  the  following  cases,  without  regard  to 
the  amount  of  money  involved,  and  these  are  the 
only  cases  in  which  criminal  suits  are  removable. 

(1)  "When  any  civil  suit  or  criminal  prosecu- 
tion is  commenced  in  any  State  court,  for  any  cause 
whatever,  against  any  person  who  is  denied,  or 
cannot  enforce  in  the  judicial  tribunals  of  the  State 
.  .  .  any  right  secured  to  him  by  any  law  provid- 
ing for  the  equal  rights  of  citizens  of  the  United 
States,"  etc. 

(2)  "  When  any  civil  suit  or  criminal  prosecution 
is  commenced  in  any  State  court  against  any  officer 
.  .  .  acting  by  authority  of  any  revenue  ^  law  of 
the  United  States  ...  on  account  of  any  act  done 
under  color  of  his  office," ^  etc. 

1  [Joy  V.  Adelhert  College,  146  U.  S.  355.] 

2  [The  postal  laws  are  revenue  laws.  See  Warner  v.  Fowler,  4 
Blatchf.  .311.] 

•5  [Cnrico  v.  Wilmore,  51  Fed.  Rep.  196;  Virginia  v.  Paul,  148 
U.  S.  107.  Til's  provision  was  enacted  first  in  1833,  being  known  as 
the  Force  Bill  ] 


196      JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

(3)  Whenever  a  personal  action  has  been  brought 
...  in  any  State  court,  by  an  alien,  against  any 
citizen  of  a  State,  who  is,  or  at  the  time  the  .  .  . 
action  accrued,  was  a  civil  officer  of  the  United 
States,  being  a  non-resident  of  that  State,  wherein 
jurisdiction  is  obtained  by  the  State  court  by  per- 
sonal service  of  process,"  etc. 

Under  these  sections  a  case  may  be  removed  by 
the  defendant  "  at  any  time  before  the  trial  or  final 
hearing  of  the  cause ; "  but  it  is  held  that  the  case 
cannot  be  removed  before  an  indictment  against 
the  defendant  has  been  found  in  the  State  court. ^ 

The  formalities  by  which  a  removal  is  to  be 
effected  are  provided  for  in  the  statute  only  as  fol- 
lows: In  all  cases  except  those  of  "local  influence," 
the  applicant  "may  make  and  file  a  petition  in  such 
suit,  in  such  State  court,  at  the  time  or  any  time 
before  the  defendant  is  required  by  the  laws  of  the 
State  or  the  rule  of  the  State  court  in  which  such 
suit  is  brought  to  answer  or  plead  to  the  declara- 
tion or  complaint  of  the  plaintiff."  He  must  also 
file  a  bond,  with  surety,  conditioned  upon  his  enter- 
ing in  the  Circuit  Court  a  copy  of  the  record,  and 
also  conditioned  upon  payment  of  costs  incurred 
in  that  court,  in  case  the  suit  is  remanded  to  the 
State  court.  "  It  shall  then  be  the  duty  of  the 
State  court  to-  accept  said  petition  and  bond,  and 
proceed  no  further  in  such  suit ;  and  the  said  copy 
being  entered,  as  aforesaid,  in  said  Circuit  Court 
of  the  United  States,  the  cause  shall  then  pro- 
ceed in  the  same  manner  as  if  it  had  been  origin- 

^  [Tennessee  y.  Davis,  100  U.  S.  257;  Strauder  v.  West  Virginia, 
100  U.  S.  303.] 


THE   REMOVAL   OF   SUITS.  197 

ally  commenced  in  the  said  Circuit  Court."  The 
objection  that  the  petition  for  removal  was  filed  too 
late  in  the  State  court,  cannot  be  taken  upon  writ 
of  error  to  the  Supreme  Court,  after  the  case  has 
proceeded  to  trial  in  the  Circuit  Court. ^ 

The  petition  for  removal  must  of  course  state 
the  grounds  upon  which  removal  is  sought,  and 
after  it  has  been  filed  in  the  State  court  the  duty 
of  that  court  is  to  assume  that  the  facts  stated  are 
true,  and  then  to  decide  whether  on  those  facts  the 
law  allows  a  removaL  It  is  for  the  Circuit  Court 
alone  to  pass  upon  the  truth  of  the  facts  stated  in 
the  petition.  There  have  been  many  decisions  the 
other  way,  but  the  point  is  now  settled.  ^  The 
theory  is  that  if  a  proper  bond,  and  a  petition  stat- 
ing a  proper  case  for  removal,  are  filed  in  the  State 
court,  thereupon  the  case  is  removed,  although  the 
State  court  may  refuse  to  make  an  order  for  removal, 
and  may  proceed  with  the  cause.  ^  In  such  a  con- 
tingency, the  defendant's  remedy  is  a  writ  of  error 
to  the  United  States  Supreme  Court  after  a  final 
decision  has  been  made  in  the  highest  court  of  the 
State  to  which  the  case  can  be  carried.  The  defend- 
ant may  defend  the  suit  in  the  State  court,  or  not, 
as  he  chooses ;  and  he  docs  not,  by  defending  the 
suit  in  the  State  court,  forfeit  his  right  to  remove 
it.*  Thus  it  might  happen  that  both  the  State 
court  and  the  Circuit  Court  should  be  trying  the 

1  [Martin  v.  Baltimore  ^  Ohio  R.  R.  Co.,  151  U.  S.  673.] 

2  [Stone  V.  South  Carolina,  117  U.  S.  430;  Kansas  City  R.  R.  v. 
Danghtrij,  138  U.  S.  298.] 

3  [Mitrshall  V.  Holmes,  141  U.  S.  589.] 

*  [McMullen  v.  Northern  Pacific  Ry.  Co.,  57  Fed.  Rep.  16.] 


198      JURISDICTION,    PEACTICE,    AND   JUEISPRUDENCE. 

same  suit  at  the  same  time,  although  "  comity " 
would  in  most  cases  prevent  this  result.^  Neither 
court  has  power  to  stop  proceedings  in  the  other. 
But  the  Circuit  Court  can  issue  a  writ  of  certiorari 
commanding  the  State  court  to  send  a  copy  of  the 
record  in  any  cause  to  the  Circuit  Court;  and  if 
the  clerk  should  refuse  to  do  so,  he  becomes  liable 
to  fine  and  imprisonment. ^ 

If,  however,  the  Circuit  Court  decides  that  the 
case  is  not  removable,  either  because  the  facts  stated 
in  the  petition  for  removal  are  not  true,  or  because 
the  case  so  stated  does  not  come  within  the  statute, 
it  remands  the  case  to  the  State  court,  and  from 
that  decision,  as  we  have  seen  already,  there  is 
no  appeal.  A  motion  to  remand  may  be  made  by 
the  plaintiff  at  any  time  after  the  case  has  been 
removed.  But,  if  a  want  of  jurisdiction  appears 
upon  the  record,  or  even  if  the  petition  for  re- 
moval was  not  filed  within  the  statutory  time,^ 
it  is  the  duty  of  the  Circuit  Court,  of  its  own 
motion,  to  remand  the  case.  If,  however,  the  court 
does  take  jurisdiction,  and  the  plaintiff  makes  no 
objection,  he  cannot,  upon  writ  of  error  to  the 
appellate  court,  complain  that  the  petition  was  filed 
too  late.*  If  a  case  is  removed  to  the  Circuit  Court, 
and  decided  there,  upon  its  merits,  against  the 
plaintiff,  he  may  either  appeal  the  whole  case  to 
the  Circuit  Court  of  Appeals  (if  it  be  appealable 

1  [Springer  v.  Howes,  69  Fed.  Rep.  849.] 

2  [Tlii.s  provision  existed  in  the  Act  of  March  3,  1875,  and  it  was 
not  repealed  by  the  ])resent  Act.] 

^  [Doivers  v.  Supreme  Council,  American  Legion  of  Honor,  45  Fed. 
Rep.  81 .] 

*  [Martin  v.  Baltimore  <j-  Ohio  R.  R.,  151  U.  S.  673,  687.] 


THE   KEMOVAL   OF   SUITS.  199 

to  that  court),  or  take  a  writ  of  error  directly  to 
the  Supreme  Court,  to  contest  the  right  of  removal 
to  the  Circuit  Court.  ^  If  the  case  were  appealable 
directly  to  the  Supreme  Court,  that  court  would 
consider  first  the  question  of  jurisdiction,  and  it 
would  not  pass  upon  the  merits  of  the  case  unless 
it  found  that  the  suit  had  rightly  been  removed. 
When  the  ground  of  removal  is  that  the  case  is 
one  arising  under  the  Constitution,  laws,  or  treaties 
of  the  United  States,  the  fact  that  it  does  so  arise 
must  appear  from  the  plaintiff's  pleadings  in  the 
State  court:  if  it  does  not  thus  appear,  "the  want 
cannot  be  supplied  by  any  statement  in  the  peti- 
tion for  removal  or  in  the  subsequent  pleadings. "  ^ 
In  the  first  of  the  cases  cited  in  the  note  to  this 
point,  there  was  a  strong  dissenting  opinion,  by 
Justices  Harlan  and  Field,  in  which  they  said  that 
the  effect  of  this  decision  is  "to  make  the  right 
of  the  defendant,  in  a  suit  arising  under  the  Con- 
stitution or  laws  of  the  United  States,  or  under  a 
treaty,  to  remove  it  from  the  State  court,  depend 
upon  the  inquiry  whether  the  suit  was  one  in  respect 
of  which  the  original  jurisdiction  of  the  Circuit 
Court  could  be  invoked  by  the  plaintiff." 

On  the  other  hand,  if  the  ground  of  removal  is 
diversity  of  citizenship,  that  fact  may  be  made  to 
appear  for  the  first  time  in  the  petition  for  removal  •,^ 
but  the  petition  must  show  of  what  States,  respec- 
tively, the  parties  were  citizens  at  the  time  when 

1  [McLish  V.  Rojf,  141  U.  S.  661,  668.] 

2  [Tennessee  V.  Union  &  Planters'  Bank,  152  U.  S.  454;  Chappellv. 
Waterworth,  155  U.  S.  102,  107.] 

3  [Citij  of  Ysleta  v.  Canda,  67  Fed.  Rep.  6.] 


200      JURISDICTION,    PRACTICE,    AND   JURISPRUDENCE 

the  suit  was  begun.  ^  Moreover,  the  requisite 
diversity  of  citizenship  must  exist,  not  only  when 
the  suit  was  begun  in  the  State  court,  but  also 
when  the  petition  for  removal  is  filed ;  and  if  the 
record  is  deficient  in  either  of  these  respects,  it 
cannot  be  amended  in  the  appellate  court.  ^  Want 
of  jurisdiction  cannot  be  waived;  and  if  a  case  has 
improperly  been  removed,  and  tried  without  objec- 
tion in  the  Circuit  Court,  it  will,  nevertheless,  be 
remanded  to  the  State  court  when  it  comes  up  by 
appeal  or  writ  of  error  to  the  Circuit  Court  of 
Appeals,  or  to  the  Supreme  Court. ^  In  stating  the 
ground  for  removal  in  such  cases,  it  is  important 
to  remember  the  distinction  between  residence  and 
citizenship.  An  averment  of  residence  is  not 
equivalent  to  an  averment  of  citizenship;  and,  on 
the  other  hand,  when  it  is  necessary  to  aver  that 
the  defendant  is  a  non-resident  of  a  certain  State, 
it  is  not  sufficient  to  aver  that  he  is  a  citizen  of 
another  and  different  State,  —  he  may  be  a  citizen 
of  one  and  yet  reside  in  the  other. ^ 

So  also  a  case  is  not  removable  unless  it  appears 
on  the  record  that  the  statutory  amount  is  in- 
volved ;  and  if  it  does  not  so  appear,  the  case 
will  be  remanded,  on  appeal,  even  after  trial  in  the 
Circuit  Court.  ^ 

J  [Mattingly  v.  Northwestern  Virginia  R.  R.  Co.,  158  U.  S. 
53.] 

2  [Grand  Trunk  Ry.  Co.  v.  Twitchell,  59  Fed.  Rep.  727.] 

3  [^fattinql^|  v.  Northwestern  Virginia  R.  R.  Co.,  158  U.  S.  5-3; 
S^onthwesiern  Telegraph  Sf'  Telephone  Co.  v.  Robinson,  48  Fed.  Rep.  769 
(citing  the  Supreme  Court  cases).] 

*  [Neel\.  Pennsi/Jran'a  Co  ,  157  U.  S.  15,3.1 

6  [Tod  V.   Cleveland,^-  M.  V.  R;/.  Co.,  65  Fed.  Rep.  145.] 


THE   EEMOVAL   OF   SUITS.  201 

Another  point  as  to  which  many  conflicting 
decisions  have  been  made  is  when  and  how  should 
the  petition  for  removal  be  addressed  to  the  State 
court.  May  it  simply  be  filed  in  the  clerk's  office, 
or  must  it  be  presented  to  the  court ;  and  can  it  be 
filed  when  the  court  is  not  sitting  ?  The  better 
opinion  is,  I  think,  that  the  petition  need  not  be 
filed  in  term  time,  and  that  it  need  not  be  presented 
to  the  court.  1 

The  petition  must  be  filed  at  or  before  the  time 
when  the  defendant  would  be  required  to  "  answer 
or  plead,"  if  the  case  had  remained  in  the  State 
court.  There  have  been  many  decisions  also  upon 
this  requirement,  but  very  few  of  them  can  be  re- 
ferred to  here.  "  Answer  "  includes  "  demui-rer  "  ; 
and  an  extension  of  time  for  answering,  whether 
made  by  order  of  the  court  ^  or  by  consent  of  counsel, 
does  not  ordinarilv  extend  the  time  for  removing. 
But  it  does  have  that  effect  under  the  New  York 
code.  2 

If  the  defendant  files  his  pleading  before  he  is 
required  by  law  to  do  so,  that  does  not  restrict  the 
time  within  which  he  may  file  a  petition  for 
removal.* 

1  [Noble  V.  Massachusetts  Benefit  Association,  48  Fed.  Eep.  337. 
Contra,  Hall  v.  Chattanooga  Agricultural  Works,  48  Fed.  l?ep. 
599.] 

2  [Ruby  Canon  Gold  Mining  Co.  v.  Huytter,  60  Fed.  Rep.  30.5. 
Contra,  Wilcox  Sf  Gibbs  Guano  Co.  v.  Phoenix  Insurance  Co.,  GO  Fed. 
Rep.  929.] 

3  [Rijcroft  V.  Green,  49  Fed.  "Rep.  177.  See  generally  on  this  sub- 
ject, Kansas  City  R.  R.  v.  Daughtry,  138  U.  S.  298;  Manning  Y.Amy, 
140  U.  S.  137.] 

*  [Conner  v.  Shagit  Cnnyherland  Coal  Co.,  45  Fed.  Rep.  802.  But 
there  can  be  no  removal  if  the  case  is  heard  on  demurrer  or  plea 


202      JURISDICTION,   PRACTICE,    AND   JURISPRUDENCE. 

The  petition  must  be  filed  at  or  before  the  time 
when  the  defendant  would  be  required  to  file  any 
pleading-  whatever,  whether  to  the  merits  or  in 
abatement.  Thus  the  Supreme  Court  say :  "  Con- 
gress contemplated  that  the  petition  for  removal 
should  be  filed  in  the  State  court,  as  soon  as  the 
defendant  was  required  to  make  any  defence  what- 
ever in  that  court,  so  that  if  the  case  should  be 
removed  the  validity  of  any  or  all  of  his  defences 
should  be  tried  and  determined  in  the  Circuit  Court 
of  the  United  States.  "^ 

What  has  now  been  said  applies  to  all  cases  other 
than  those  of  local  influence,  and  in  part  to  those 
cases  also.  But  in  local  influence  or  prejudice  cases 
the  procedure  is  different  in  the  following  respects: 
The  petition  and  bond  are  filed  not  in  the  State 
court,  but  in  the  Circuit  Court,  and  this  may  be 
done,  in  the  language  of  the  statute  "at  any  time 
before  the  trial  thereof."  The  Supreme  Court  have 
interpreted  this  to  mean :  "  before  or  at  the  term 
at  which  the  cause  could  first  be  tried,  and  before 
the  trial  thereof ; "  and  also,  as,  before  or  at  "  the 
first  term  in  which  the  cause  would  stand  for  trial 
if  the  parties  had  taken  the  usual  steps  as  to 
pleadings  and  other  preparations.  "^ 

The  Supreme  Court  have  prescribed  certain  for- 
malities for  removing  cases  of  this  kind  beyond 
those  required  by  the  statute.     They  say :  — 

before  ths  time  for  answering  or  pleading  has  expired:  Fideliti/ 
Trust  cf-  Safety  Vault  Co.  v.  Newport  News  ^~  M.  V.  Co.,  70  Fed. 
Kep.  40.3] 

1  [Martin  v.  Baltimore  Sj-  Ohio  R.  R.  Co.,  151  U.  S.  673,  687.] 

2  [F/.s7/  V.  TTenarie,  142  U.  S.  4.59,  466.  As  to  what  is  meant  by 
"  trial,"  see  City  of  Detroit  v.  Dttruil  City  Ry.  Co.,  54  Fed.  Kep.  1,  7.] 


THE    KEMOVAL   OF   SUITS.  203 

"The  right  to  a  removal  is  determined  by  the 
Federal  court,  and  determined  upon  evidence  satis- 
factory to  it.  When  it  is  satisfied  that  the  condi- 
tions exist,  the  defendant  may  remove;  how?  The 
proper  way  is  for  him  to  obtain  an  order  from  the 
Federal  Court  for  the  removal,  file  that  order  in 
the  State  court,  and  take  from  it  a  transcript,  and 
file  it  in  the  Federal  court.  It  may  be  said  that 
these  steps  are  not  in  terms  prescribed  by  the 
statute.  That  is  true ;  and  [it  is]  also  true  that  no 
specific  procedure  is  named.  The  language  simply 
is  that  the  defendant  may  i-emove,  when  he  has 
satisfied  the  Federal  court  of  the  existence  of  suffi- 
cient prejudice.  The  statute  being  silent,  the 
general  rules  in  respect  to  the  transfer  of  cases 
from  one  court  to  another  must  obtain.  ...  At 
any  rate,  if  these  exact  steps  are  not  requisite, 
something  equivalent  thereto  is.  If  there  had  been 
more  attention  paid  to  these  matters  in  removal 
proceedings,  there  would  have  been  less  irritation 
prevailing  in  State  tribunals  at  removals. "  *  It  was 
held  in  this  case  that  an  entry  in  the  record  in  the 
Circuit  Court,  finding  a  right  to  remove  on  the 
ground  of  local  influence,  but  making  no  order  to 
that  effect,  did  not  operate  as  a  removal.  But  if, 
■without  making  such  an  order,  the  Circuit  Court 
had  proceeded  with  the  suit,  and  the  plaintiff  had 
contested  it, —  in  that  case,  it  seems  that  the  want 
of  an  order  would  have  been  waived. ^ 

The  defendant  presents  his  case  for  removal  on 
the  ground  of  local  influence  by  means  of  an  affi- 

^  [Pennsylvania  Co.  v.  Bender,  148  U.  S.  255.] 

2  [Tod  V.  Cleveland  ^-  AI.  V.  Rij.  Co.,  65  Fed.  Rep.  145.] 


204      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

davit  or  affidavits.  Under  the  law  as  it  stood 
prior  to  1887,  it  was  sufficient  for  him  to  state 
his  belief  that  he  could  not  obtain  a  fair  trial 
in  the  State  court.  But  under  the  present  act 
he  must  go  further  and  offer  proof  in  support  of 
his  statement;  and  what  must  be  the  extent  of 
that  proof  the  Supreme  Court  have  indicated  as 
follows :  — 

"Our  opinion  is  that  the  Circuit  Court  must  be 
legally  (not  merely  morally)  satisfied  of  the  truth 
of  the  allegation  that  from  prejudice  or  local 
influence,  the  defendant  will  not  be  able  to  obtain 
justice  in  the  State  court.  Legal  satisfaction  re- 
quires some  proof  suitable  to  the  nature  of  the  case ; 
at  least  an  affidavit  of  a  credible  person;  and 
a  statement  of  facts  in  such  affidavit,  which  suffi- 
ciently evince  the  truth  of  the  allegation.  The 
amount  and  manner  of  proof  required  in  each 
case  must  be  left  to  the  discretion  of  the  court 
itself.  A  perfunctory  showing  by  a  formal  affidavit 
of  mere  belief  will  not  be  sufficient.  If  the  peti- 
tion for  removal  states  the  facts  upon  which  the 
allegation  is  founded,  and  that  petition  be  verified 
by  affidavit  of  a  person  or  persons  in  whom  the 
court  has  confidence,  this  may  be  regarded  as  prima 
facie  proof  sufficient  to  satisfy  the  conscience  of 
the  court.  If  more  should  be  required  by  the  court, 
more  should  be  offered. "  ^ 

This  seems  to  contemplate  a  petition  by  the 
defendant  stating  the  facts  relied  upon,  and  an 
affidavit  by  some  other  person  or  persons  in  support 
of  the  petition;  and  probably  the  petition   should 

1  [In  re  Pennsylvania  Co.,  137  U.  S.  451,  457.] 


THE   KEMOVAL    OF   SUITS.  205 

be  sworn  to.^  It  has  been  much  discussed  also 
whether  the  plaintiff  has  a  right  to  receive  notice 
of  the  petition,  and,  further,  whether  he  has  a  right 
to  file  counter-affidavits,  contesting  the  fact  of 
local  prejudice  or  influence.  It  seems  to  be  settled 
that  neither  right  exists  under  the  statute.  But 
the  better  practice  is  for  the  defendant  to  give  to  the 
plaintiff  notice  of  his  petition  ;2  and  it  is  within 
the  discretion  of  the  court  to  permit  the  plaintiff  to 
file  counter-affidavits.  The  whole  subject  is  dis- 
cussed in  Beeves  v.  Corning,^  where  the  court  re- 
fused to  consider  affidavits  offered  by  the  plaintiff, 
which  were  not  filed  until  after  the  motion  for 
removal  had  been  granted. 

Equity,  as  well  as  common-law,  cases  are  remov- 
able under  this  head ;  and  it  may  be  shown  that  the 
judge  or  judges  of  the  State  court,  as  well  as  a 
jury,  might  be  affected  by  the  alleged  local  influ- 
ence or  prejudice, —  such,  at  least  was  the  decision 
in  a  circuit  where  the  State  judges  are  elected  by 
popular  vote.^ 

The  fact  that  local  influence  or  prejudice  exists 
as  between  one  defendant  and  another,  gives  no 
right  of  removal.^ 

1  [Hall  V.  Chattanooga  Agricultural  Worlcs,  48  Fed.  Eep.  599,  604  ; 
Schwenk  cj-  Co.  v.  Strang,  59  Fed.  "Rep.  209.] 

2  [The  Circuit  Court  of  Appeals  for  the  eiglith  circuit  have  said : 
*'  The  parties  to  be  affected  by  the  action  of  the  court  shoukl  have 
reasonable  notice  of  the  application  for  removal,  and  an  opportunity 
to  contest  it."  Schtcenk  ^  Co.  v.  Strang,  supra.  As  to-  what  is 
such  reasonable  notice,  see  Carson,  ^-c.  Lumber  Co.  v.  Iloltsclaw,  39 
Fed.  Rep.  578] 

8  [51  Fed.  Eep.  774.] 

*  [C'^.y  of  Detroit  V.  Detroit  Cltg  Ry.  Co.,  54  Fed.  Rep.  1.] 

6  IHanrick  v.  Hanrick,  153  U.  S.  192.] 


206      JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

A  question  has  been  raised  whether  the  wording 
of  the  present  statute,  in  respect  to  local  prejudice 
cases,  permits  the  defendant  to  remove,  when  one 
or  more  of  the  plaintiffs  are  non-residents  oi  the 
State  where  the  suit  is  brought.  It  seems  to  be 
settled  that  in  such  a  case  there  is  no  removal.  ^ 
It  is  more  doubtful  whether  a  non-resident  defend- 
ant can  remove  if  he  is  joined  with  other  resident 
defendants,  but  probably  he  cannot  do  so,^  unless, 
of  course,  there  is  a  separable  controversy. 

The  difference  between  the  present  law  and  pre- 
vious laws  as  to  the  removal  of  cases  on  the  ground 
of  local  influence  or  prejudice,  has  been  stated  as 
follows  by  the  Supreme  Court:  — 

"Under  the  previous  acts  the  right  of  removal 
might  be  exercised  by  plaintiff  as  well  as  by  defend- 
ant; the  application  was  addressed  to  the  State 
court;  there  was  no  provision  for  the  separation  of 
the  suit;  the  ground  of  removal  was  based  upon 
what  the  affiant  asserted  he  had  reason  to  believe 
and  believed;  and  action  on  the  motion  to  remand 
could  be  reviewed  on  appeal  or  writ  of  error,  or  by 
mandamus.  While  under  the  latter  [the  present] 
act  the  right  is  confined  to  the  defendant;  the 
application  is  made  to  the  Circuit  Court;  the  suit 
may  be  divided  and  remanded  in  part;  the  pre- 
judice or  local  influence  must  be  made  to  appear 
to  the  Circuit  Court;  that  is,  the  Circuit  Court 
must  be  legally  satisfied  by  proof  suitable  to  the 

1  [Cann  v.  Northeastern  R.  R.  Co.,  57  Fed.  Eep.  417.] 

2  [Anderson  v.  Bowers, 43  Fed.  Rep.  321.  Cotttra,  Haire  v.  Rome 
R.  R.  Co.,  57  Fed.  Rep.  321 ;  Jackson  ^  Sharp  Co.  v.  Pearson,  60 
Fed.  Rep.  113.] 


THE  HEMOVAL   OF   SUITS.  207 

nature  of  the  case,  of  the  truth  of  the  allegation 
that  by  reason  of  those  causes  the  defendant  will 
not  be  able  to  obtain  justice  in  the  State  courts; 
and  review  on  writ  of  error  or  appeal  or  by  manda- 
mus is  taken  away.  "^ 

Now  that  we  have  seen  by  what  formalities 
removal  is  effected,  I  shall  take  up  the  various 
clauses  of  the  Act  of  1887-1888,  the  substance  of 
which  is  given  above,  and  mention  a  few  of  the 
decisions  which  have  been  made  in  construing 
them. 

The  preliminary  paragraph  was  as  follows:  "Re- 
moval mav  be  had  of  all  civil  suits,  at  law^  or 
in  equity,  which  might  have  been  begun  in  the 
Circuit  Court,  and  which  involve  more  than  $^2000, 
exclusive  of  interest  and  costs,  in  the  following 
cases."  Almost  every  word  here  has  been  the  sub- 
ject of  litigation.  First  as  to  the  term  "civil." 
Suits  to  recover  penalties  are  criminal  suits,  and 
therefore  they  are  not  removable.^  So,  an  action 
on  a  recognizance  is  of  a  criminal  nature,  and  can- 
not be  removed.  Next,  as  to  the  word  "suits." 
There  must  be  a  real  and  existing  contest.  Where, 
for  instance,  the  defendant  has  been  defaulted, 
there  is  no  right  of  removal. *  Wheth-er  or  not  the 
proceeding  in  question  is  a  "suit,"  must  be  deter- 
mined according  to  the  laws  and  procedure  of  the 
State   where  the  question  arises.     "It  must  be  a 

1  [Fisk  V.  Henarie,  142  U.  S.  459,  468.] 

2  [See  Brisenden  v.  Chamberlnhi,  53  Fed.  Rep.  307.] 

3  [Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S.  265;  Ferguson  v. 
Ross,  3S  Fed.  Rep.  161.] 

*  [Berrian  v.  Chetwood,  9  Fed.  Rep.  678.] 


208      JUKI3DICTI0N,    PRACTICE,    AND    JUKISPRUDENCE. 

snit  commenced   in    the    State    court  within    the 
meaning  of  the  State  law. "  ^ 

The  words  "  suit "  and  "  controversy  "  appear  to 
be  synonymous  in  the  statute,  so  far  at  least  as 
subject-matter  (not  parties)  is  concerned  ;2  and  the 
Supreme  Court  have  held  that  a  "controversy"  is 
involved  "whenever  any  property  or  claim  of  the 
parties  capable  of  pecuniary  estimation  was  the 
subject  of  the  litigation,  and  was  presented  by 
the  pleadings  for  judicial  determination.  "^ 

In  a  habeas  corpus  suit,  the  matter  involved,  being 
the  liberty  of  the  petitioner,  is  not  "capable  of 
pecuniary  estimation,"  and  therefore  such  a  suit  is 
not  removable.  It  was  so  decided  under  the  Act 
of  1875,^  and  the  decision  is  equally  applicable  to 
the  present  statute.  It  is  more  difficult  to  decide 
what  is  "  judicial  determination."  There  are  many 
semi-judicial  bodies,  such  as  Probate  Courts  and 
County  Commissioners;  and  proceedings  before 
them  are  held  to  be  "suits"  or  not,  according  as 
they  are  more  nearly  of  a  judicial  or  of  an  adminis- 
trative nature.  In  West  Virginia  there  is  a  tribunal 
called  a  "County  Court,"  one  function  of  which  is 
to  hear  and  decide  appeals  from  the  assessment  of 
taxes;  and  the  Supreme  Court  decided  that  such 
an  appeal  to  this  body  was  not  a  "suit."  They 
said:  "It  is  true  that  the  tribunal  of  appeal  is 
called  the  '  County  Court,'  but  it  has  no   judicial 

1  [In  re  Receivership  of  Iowa  ^  Minnesota  Construction  Co.,  6  Fed. 
Kep.  799.] 

2  [The  meaning  of  "  controversy  "  is  discussed  in  Kin(;  v.  McLean 
Asi/lum,  64  Fed.  Rep  331.] 

8  [Gaines  v.  Fuentes,  92  U.  S.  10,  20] 
*  IKurtz  V.  Moffitt,  115  U.  S.  487.] 


THE   KEMOVAL   OF    SUITS.  209 

powers  except  in  matters  of  probate.  In  all  other 
matters  it  is  an  administrative  board  charged  with 
the  management  of  county  affairs."  And,  speak- 
ing generally  of  such  tribunals,  the  court  said: 
"  Whatever  called,  it  is  not  usually  a  court,  nor  is 
the  proceeding  a  suit  between  parties ;  it  is  a  matter 
of  administration,  and  the  duties  of  the  tribunal  are 
administrative,  and  not  judicial  in  the  ordinary 
sense  of  that  term,  though  often  involving  the  exer- 
cise of  quasi-judicial  functions.  .  .  .  We  cannot 
believe  that  every  assessment  of  property  belonging 
to  the  citizen  of  another  State  can  be  removed  into 
the  Federal  courts.  Certainly  the  original  assess- 
ment .  .  .  could  not  be  called  a  suit,  and  could 
not  be  thus  removed ;  and  there  is,  justly,  no  more 
reason  for  placing  an  assessment  on  appeal  within 
that  category.  .  .  .  The  fact  that  the  board  of 
appeal  may  swear  witnesses  does  not  make  the  pro- 
ceeding a  suit."  ^ 

A  proceeding  to  probate  a  will  is  ordinarily  not 
a  suit.  2  "Yet,"  the  Supreme  Court  have  remarked, 
"if  a  contestation  arises,  and  is  carried  on  between 
parties  litigating  with  each  other,  the  proceeding 
then  becomes  a  suit. "  "^  There  are  many  proceedings 
which,  coming  at  first  before  an  administrative 
body,  do  not  constitute  a  suit,  but  subsequently,  on 
appeal,  they  come  before  a  judicial  body,  and  form 
a  suit.  Thus  a  proceeding  before  a  mayor  and  a 
jury  to  take  land,  and  to  assess  damages,  became  a 
suit,  when,  on  appeal,  it  was  transferred  to  a  court 

1  [Upshur  County  v.  Rich,  135  U.  S.  467,  471,  472.] 

2  [In  re  Cilley,  58  Fed.  Rep.  977.] 

8  [See  also  Brodhead  v.  Shoemaker,  44  Eed.  Eep.  518.] 

14 


210      JUKISDICTION,    PRACTICE,    AND   JURISPRUDENCE. 

of  the  State. ^  Writs  of  prohibition  and  of  manda- 
mus are  usually,  but  not  always  suits. ^  An  appli- 
cation by  an  administrator  for  a  license  to  sell  real 
estate  may  be  a  suit.^  And  so  may  be  a  statu- 
tory proceeding  in  a  county  court  to  condemn 
land.* 

The  next  words  in  the  preliminary  clause  of  the 
statute  are,  "  which  might  have  been  begun  in  the 
Circuit  Court."  This  condition,  that  a  suit  cannot 
be  removed  to  the  Circuit  Court  unless  it  could 
have  been  begun  there,  probably  applies  to  all 
classes  of  cases  made  removable,  including  those  of 
" separable  controversy  "  and  of  "local  influence," 
though  it  has  been  decided  in  some  circuits  that 
these  two  classes  are  outside  of  this  condition.^ 
It  is  held,  however,  that  a  suit  is  removable, 
although  it  could  have  been  begun  in  the  Circuit 
Court  only  by  consent  of  the  defendant  to  be  sued 
in  that  court. ^ 

The  succeeding  words  are:  "and  which  involve 
more  than  $2000,  exclusive  of  interest  and  costs. " 
The  amount  is  determined  by  the  sum  stated  in  the 
declaration,  but  if  this  should  manifestly  be  exces- 
sive, the  Circuit  Court  would  remand  the  case  to 

1  {Pacific  Removal  cases,  115  U  S.  1.  See  also  In  re  The  Jamecke 
Ditch,  69  Fed.  Rep.  161.] 

'■2  [Rosonbaum  v.  Bauer,  120  U.  S.  450.] 

3  [Elliott  V.  Shuler,  50  Fed.  Rep.  454.] 

*   [Searl  v.  School  District  No.  2,  124    U.  S.  197.] 

6  [See  Tn  re  Ciltey,  58  Fed.  Rep.  977.] 

6  [Kansas  City  <j-  T.  R.  Co.  v.  Interstate  Lumber  Co.,  37  Fed. 
Rep.  .3  ;  American  Finance  Co.  v.  BoMwick,  151  Mass.  19.  There 
have  1)0011  numerous  decisions  on  both  sides  of  this  question.  See 
Harold  V.  Iron  Silver  Mining  Co.,  33  Fed.  Rep.  529.] 


THE   REMOVAL   OF    SUITS.  211 

the  State  court.  ^  The  total  sum  may  be  made  up 
of  separate  items. ^  Where  there  are  several  suits 
between  the  same  parties,  all  based  on  the  same 
facts,  and  there  is  an  agreement  that  only  one  suit 
shall  actually  be  tried,  that  suit  is  removable,  pro- 
vided that  the  aggregate  sum  involved  in  all  the  suits 
is  more  than  $!2000.3  When  the  right  to  removal 
is  complete,  the  plaintiff  cannot  defeat  it  by  re- 
ducins;  his  ad  damnum  to  a  sum  less  than  $2000.* 
Whether,  in  estimating  the  $2000  required,  a 
counter-claim  made  by  the  defendant  can  be 
included,  is  another  point  upon  which  the  deci- 
sions are  conflicting.  It  seems  that  it  cannot  be 
included.^ 

Such  being  the  conditions  of  removability,  I  will 
now  give  a  few  illustrations  of  the  more  difficult 
classes  of  cases  made  removable  by  the  statute: — ^ 

(a)  Where  the  case  arises  under  the  Constitution, 
laws,  or  treaties  of  the  United  States. 

In  the  language  of  Judge  Thayer,  ^  "  A  case  is 
one  of  Federal  cognizance  whenever  it  becomes 
necessary  to  construe  the  Constitution,  laws,  or 
treaties  of  the  United  States,  or  to  decide  as  to  the 

1  [Maxwell  v.  Atchison,  ^-c.  R.  R.  Co.,  34  Fed.  Rep.  286.  See  ante, 
pp.  88-91,  121-122.] 

■^  [Dernheim  v.  Birnbaum,  .30  Fed.  Rep.  885 ;  Armstrong  v.  Ettlesohn, 
36  Fed.  Rep.  209.] 

3  [Marshall  v.  Holmes,  141  U.  S.  589,  595.] 

*  [Kanouse  v.  Martin,  15  How.  198;  Louisville  ^  Nashville  R.  R. 
Co.  V.  Roehlinrj,  11  111.  App.  264.] 

5  [La  j\fontagne  v.  Harvey  Lumber  Co.,  44  Fed.  Rep.  645;  Bennett 
V.  Devine,  45  Fed.  Rep.  705.  Contra,  Carson,  cjr.  Lumber.  Co.  v- 
Hohzclaw,  39  Fed.  Rep.  578.] 

6  [See  ante,  p.  189.] 

'  [I  quote  from  the  pamphlet  mentioned  in  the  preface.] 


212      JURISDICTION,   rPtACTICE,    AND    JURISPRUDENCE. 

existence  of  some  riglit,  title,  privilege,  claim,  or 
immunity  asserted  thereunder. "  ^  The  case  must 
turn  in  whole,  or  in  part,  upon  the  alleged  Federal 
question.  It  is  not  sufficient  that  ''in  the  progress 
of  the  litigation,  it  may  become  necessary  to  give  a 
construction  to  the  Constitution  or  laws  of  the 
United  States. "  2 

A  controversy  involving  the  authority  of  the 
United  States  to  grant  a  certain  land  patent  is,  of 
course,  removable.^  But  if  the  ownership,  and  not 
the  validity  or  construction  of  the  land  patent  were 
involved,  the  case  would  not  be  removable.*  A 
suit  on  a  judgment  recovered  in  a  Federal  court 
does  not  raise  a  Federal  question,  and  is  not  re- 
movable.^ But  if  the  State  court  should  refuse  to 
give  effect  to  that  judgment,  then  a  Federal  ques- 
tion would  arise,  and  the  case  would  be  removable.^ 
It  has  even  been  held  by  a  Circuit  Court  that  a 
suit  to  recover  taxes  collected  under  a  State  statute, 
which  the  same  Circuit  Court  had  declared  in  a 
previous  case  to  be  unconstitutional,  is  not  remov- 
able. "  That  decree  is  merely  an  item  of  evidence 
in  the  case,"  said  the  court. '^ 

Of  course  the  question  whether  a  certain  State 
law  impairs  the  obligation  of  a  contract  is  remov- 

1  [Cohens  \.  Virginia,  6  Wheat.  264 ;  Starin  v.  New  York,  115  U.  S. 
248.] 

2  [Colli-  Wa!<hi,ifj  <S-  Water  Co.  v.  Keyes,  96  U.  S.  199,  203.} 
8  [Mitchell  V.  Smale,  140  U.  S   406.] 

*  [Romie  v.  Casanom,  91  U.  S.  379.] 

*  [Provident  Savings  Society  v.  Ford,  114  U.  S.  635.] 

*  [Dupasseur  v.  Rocherean,  21  Wall.  130.] 

'  \Berger  v.  County  Commissioners  of  Doughs  County,  2  McCrary, 
483.  See  Leather  Manufacturers'  National  Bank  v.  Cooper,  120  U.  S. 
778.] 


THE    REMOVAL    OF   SUITS.  213 

able.i  There  are  numerous  cases  dealing  with 
suits  by  receivers  of  national  banks,  who  are 
appointed  by  the  Comptroller  of  the  United  States 
Treasury,  and  with  suits  by  other  receivers  who  are 
appointed  by  the  United  States  courts.  There  seems 
to  be  no  distinction  between  them,  so  far  as  suing 
and  being  sued  are  concerned.  In  either  case  the 
receiver  is  an  officer  of  the  United  States,^  and  as 
such  within  Rev.  Stat.  sec.  629,  which  provides 
that  the  Circuit  Courts  shall  have  jurisdiction  "of 
all  suits  at  common  law  where  the  United  States, 
or  any  officer  thereof,  suing  under  the  authority  of 
any  act  of  Congress,  are  plaintiffs."  The  Circuit 
Courts,  therefore,  have  jurisdiction  originally,  and 
by  removal  of  all  suits  brought  by  receivers  of 
national  banks, ^  or  by  receivers  appointed  by  the 
United  States  courts.  But  as  to  suits  against  such 
receivers,  the  law  is  not  quite  so  clear.  There  is 
no  question  that  when  the  suit  against  the  receiver 
concerns  his  title  to  the  property,  or  the  ownership 
of  the  property,  it  is  removable  to  the  Circuit 
Court.*  It  was  held  also  in  Jewett  v.  Whitcomb,^ 
that  suits  for  damages  against  the  receiver  of  a 
railroad  corporation,  the  receiver  having  been  ap- 
pointed  by  a  Circuit  Court,    are  removable.       On 

1  [Smith  V.  Greenhow,  109  U.  S.  669.] 

2  [Armstrong  v.  Ettlesolm.  36  Fed.  Rep.  209,  as  to  National  Bank 
receivers.] 

3  [See,  however,  Thompson  v.  Pool,  70  Fed.  Rep.  725.] 

*  [Soioles  V.  Witters,  43  Fed.  Rep.  700.  This  also  was  a  suit 
against  the  receiver  of  a  National  Bank.] 

5  [69  Fed.  Rep.  417,  citing  Texas  ^  Pacific  Railwatf  Co.  v.  Cox, 
145  U.  S.  593,  603,  and  Tennessee  v.  Bank  of  Commerce,  152  U.  S. 
454,  463,  472.] 


214      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

the  other  hand,  it  was  held,  that  a  suit  against  a 
receiver  (of  a  national  bank),  where  the  only  ques- 
tion was  as  to  a  set-off  claimed  by  the  bank,  was 
not  removable.  1  There  is  a  distinction  between 
this  case  and  that  decided  in  Jeivett  v.  Whitcomb, 
for  here  the  cause  of  action  had  nothing  to  do  either 
with  the  receiver's  title,  or  with  his  management 
of  the  property;  whereas  in  Jeivett  v.  Whitcomb, 
the  cause  of  action  was  the  negligence  of  persons 
employed  by  the  receiver,  and  for  whom  he  was 
responsible.  The  two  cases,  therefore,  are  not 
necessarily  inconsistent. 

Corporations  created  by  acts  of  Congress  may 
remove  actions  brought  against  them  on  the  ground 
that  such  actions  are  suits  "  arising  under  the  laws 
of  the  United  States.  "^  There  was  always  some 
doubt  whether  national  banks  came  within  this 
category ;  but  the  present  statute  solves  that  doubt, 
as  we  have  seen,  by  providing  that  national  banks 
shall  be  deemed  "citizens  of  the  States  in  which 
they  are  respectively  located ; "  and  that  the  Circuit 
and  District  Courts  shall  have  over  suits  by  or 
against  them  the  same  jurisdiction  only  as  if  they 
were  individuals. 

The  next  clause  in  the  statute  is  — 

1  [Tehan  v.  First  National  Bank,  39  Fed.  Rep.  577.  Contra,  Sowles 
V.  First  National  Bank  of  St.  Albans,  46  Fed.  Rep.  513;  Evans  v. 
DilUnfjham,  43  Fed.  Rep.  177.] 

2  [Pacific  Railroad  Removal  Cases,  1 15  U.  S.  1  ;  Union  Pacific  R.  R. 
V.  McComh,  1  Fed.  Rop.  799.  There  is  an  act  pending  in  Congress 
■vvhich  withdraws  this  privilege  from  railroad  companies  incor- 
porated under  United  States  laws,  and  makes  them,  for  purposes 
of  jurisdiction,  citizens  of  the  respective  States  in  which  their  lines 
extend.] 


THE    REMOVAL   OF    SUITS.  215 

(b)  Where  the  suit  is  between  citizens  of  differ- 
ent States,  and  more  than  $2000,  exclusive  of  inter- 
est and  costs,  are  involved.  The  defendant,  if  a 
non-resident,  may  remove. 

In  these  cases  the  requisite  diversity  of  citizen- 
ship must  have  existed  not  only  when  the  petition 
for  removal  was  filed,  but  also  when  the  case  was 
first  brought  in  the  State  court.  It  is  not  sufficient 
that  the  plaintiff  or  defendant  changed  his  citizen- 
ship after  the  suit  was  brought.^  An  executor, 
administrator,  trustee,  guardian,  or  receiver  may 
remove  a  suit,  accordingly  as  his  own  citizenship 
does  or  does  not  permit  him  so  to  do,  —  not  the 
citizenship  of  those  whom  he  represents. 2  But  he 
can  continue  a  suit  removed  to  a  Circuit  Court  by 
the  person  or  corporation  to  whose  legal  rights 
he  succeeds,  although  he  could  not  himself  have 
removed  it  to  that  court. 

A  suit  between  a  State  on  one  side,  and  citizens 
of  another  State  on  the  other,  cannot  be  removed 
on  the  ground  of  citizenship,  because  a  State  is  not 
a  citizen.^  A  corporation  is  a  resident  only  of  the 
State  in  which  it  is  incorporated ;  it  is  a  non- 
resident of  every  other  State.*  Consequently,  a 
corporation  may  remove  a  suit,  as  being  a  non- 
resident, though  it  be  sued  in  a  State  where  it  trans- 
acts   business,    and    has    an    agent,    and   is   made 

1  [Stevens  v.  Nichols,  130  U.  S.  230.] 

2  [Amori/  Y.  Amor  I/,  95  U.  S.  187.  See  Grand  Trunk  Ry.  Co.  v. 
TwitcheU,  59  Fed.  Rep.  727.] 

3  [Stone  V.  South  Carolina,  117  U.  S.  430.] 

*  [Martin  v.  Baltimore  Sr  Ohio  R.  R.  Co.,  151  U.  S.  673;  Southern 
Pacific  Co.  V.  Denton,  146  U.  S.  202.] 


216      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

liable  to  suit  by  the  statutes  of  the  State.  And 
this  is  true  also  of  suits  to  which  a  citizen  of  a 
Territory  or  of  the  District  of  Columbia  is  a  party.  ^ 
What  constitutes  "residence"  was  discussed  in 
Rivers  v.  Bradley."^  A  suit  is  removable  by  non- 
resident defendants,  on  the  ground  of  diverse 
citizenship,  although  all  of  the  plaintiffs  are  not 
residents  of  the  State  in  which  the  suit  is  brought.^ 
In  fact,  it  seems  to  be  requisite  that  all  the  plaintiffs 
should  be  citizens  of  the  State  where  the  suit  is 
brought  only  in  cases  of  local  influence  or  pre- 
judice* 

We  have  seen  in  the  preceding  chapter  that 
an  assignee  of  a  cliose  in  action  cannot  sue  upon 
it  in  the  Circuit  Court,  on  the  ground  of  diverse 
citizenship,  unless  the  assignor  could  have  sued 
in  that  court,  except  in  two  special  cases,  those 
of  a  foreign  bill  of  exchange,  and  of  a  promissory 
note  made  by  a  corporation  and  payable  to  bearer. 
But  when  the  assignee  of  a  cliose  in  action  brings 
suit  thereon  in  a  court  of  the  State  of  which  he 
is  a  citizen  against  a  non-resident  of  the  State, 
such  non-resident  may  remove  the  suit  to  the 
Circuit  Court,  without  regard  to  the  citizenship  of 
the  assignor,  if  more  than  s|2000,  exclusive  of 
interest  and  costs,  are  involved.^] 

1  [New  Orleanx  v.  Winter,  1  Wheat.  91.] 

2  [5.3  Fed.  Rep.  30.5.] 

8  [Alley  V.  Edw.  Hines  Lumber  Co.,  64  Fed.  Rep.  903.] 
*  [Toci  V.  Cleveland  4-  M.  V.  Ri/.  Co.,  65  Fed.  Rep.  145,] 
6  [i^hnttuck  V.  North  British  ^  Mercantile  Insurance  Co.,  58  Fed. 
Rep.  609.] 


HABEAS   CORPUS.  217 


CHAPTER  YII. 

HABEAS   CORPUS. 

[Habeas  corpus  is  a  civil,  not  a  criminal  proceed- 
ing. 1  It  is  a  suit  by  itself,  and  it  is  never  regarded 
as  part  of  the  same  suit  or  proceeding  in  the  course 
of  which  the  person  concerned  has  been  imprisoned. ^ 

The  Supreme  Court,  the  Circuit  Court,  the  Dis- 
trict Court,  and  the  several  Justices  and  Judges 
thereof,  have  power  to  issue  writs  of  habeas  corpus^ 
in  certain  cases  specified  by  the  statute.^ 

It  is  a  question  whether  the  Circuit  Courts  of 
Appeal,  or  the  judges  thereof  have  this  power. 
Probably  they  do  not.*  That  court  is  one  of  appel- 
late jurisdiction  solely,  and  the  statute  creating  it 
is  silent  upon  the  subject  of  habeas  corpus.  It  does 
indeed  give  to  the  Judges  of  that  court  the  same 
power  to  issue  writs  which  is  conferred  by  Revised 
Statutes,  sec.  716,  upon  Justices  and  Judges  of  the 
Federal  courts  then  existing;  but  this  section  does 
not  mention  and  apparently  does  not  include  writs 
of  habeas  corpus.      The  Circuit  Courts  of  Appeal 

1  [Ex  parte  Tom  Tong,  108  U.  S.  556.] 

2  [Ibid.] 

3  [Rev.  Stat.  §§  751,  752.] 

*  [In  re  Boles,  48  Fed.  Rep.  75.] 


218      JURISDICTION',    PRACTICE,   AND    JURISPRUDENCE. 

possess,  however,  a  restricted  appellate  jurisdiction 
in  habeas  corpus  cases,  which  will  shortly  be  stated. 

The  Justices  of  the  Supreme  Court  can  issue 
writs  of  habeas  corpus  in  any  part  of  the  country ; 
and  they  can  make  them  returnable  either  before 
themselves  or  before  the  court. ^  The  inferior 
courts  and  Judges  can  issue  this  writ  only  within 
their  respective  jurisdictions;  that  is  to  say,  the 
Circuit  Courts  and  the  Circuit  Judges  within  their 
respective  circuits,  and  the  District  Courts  and 
District  Judges  within  their  respective  districts. 

It  should  be  understood  that  the  jurisdiction  of 
the  Federal  courts  upon  writs  of  habeas  corpus  does 
not  extend  to  all  cases  where  a  person  is  unlawfully 
deprived  of  liberty.^  Their  jurisdiction  is  expressly 
limited  by  statute  to  the  following  cases  :^  — 

(1)  When  a  person  is  in  custody,  under  or  by 
color  of  the  authority  of  the  United  States,  or  is 
committed  for  trial  before  some  court  thereof. 

(2)  When  he  is  in  custody  for  an  act  done  or 
omitted  in  pursuance  of  a  law  of  the  United 
States,^  or  of  an  order,  process,  or  decree  of  a 
court  or  Judge  thereof. 

(3)  When  he  is  in  custody  in  violation  of  the 
Constitution,  or  of  a  law  or  treaty  of  the  United 
States. 

1  [Ex  parte  Clarke,  100  U.  S.  399.] 

2  [Tn  re  Biirrus,  136  U.  S.  586,  591.] 
8  [Revised  Statutes,  §  753.] 

*  [Under  this  clause,  officers  of  the  United  States,  such  as  mar- 
slials,  deputy-marslials,  and  revenue  agents,  are  protected  from 
molestation  by  individuals,  or  by  State  magistrates,  while  enforcing 
the  laws  of  the  United  States.  See  In  re  Neagle,  135  U.  S.  1,  —  an 
extreme  case.] 


HABEAS   CORPUS.  219 

(4)  When,  being  a  subject  or  citizen  of  a  foreign 
State,  and  domiciled  therein,  he  is  in  custody  for 
an  act  done  or  omitted  under  any  alleged  right, 
title,  authority,  privilege,  protection,  or  exemption 
claimed  under  the  commission  or  order  or  sanction 
of  any  foreiu'n  State,  or  under  color  thereof,  the 
validity  and  effect  whereof  depend  upon  the  law  of 
nations. 

(5)  When  it  is  necessary  to  bring  the  prisoner 
into  court  to  testify. 

The  Judiciary  Act  of  1789  did  not  expressly 
confer  upon  the  Supreme  Court  any  appellate  power 
over  the  inferior  Federal  courts  in  matters  of  habeas 
corpus,  and  this  power  was  first  expressly  conferred 
by  the  Act  of  Feb.  5,  1867  (14  Stat.  385.)  But 
inasmuch  as  Congress  did  not  approve  of  the  manner 
in  which  the  Supreme  Court  exercised  this  juris- 
diction, it  took  the  power  away,  or  attempted  to 
do  so  by  the  Act  of  March  27,  1868  (15  Stat.  44). 
The  Supreme  Court,  however,  soon  decided  that, 
irrespective  of  any  special  act,  it  was  possessed  of 
this  power  under  its  general  authority  to  issue  all 
writs  necessary  for  the  exercise  of  its  jurisdiction.^ 

The  way  in  which  the  Court  arrived  at  this  con- 
clusion is  stated  by  Judge  Curtis  as  follows:  "The 
Supreme  Court  decided  that  although  they  had  no 
direct  grant  of  appellate  power,  and  could  not  revise 
the  decision  of  the  Circuit  Court  on  a  writ  of  habeas 
corpus,  under  an  appeal,  nevertheless,  if  the  Circuit 
Court  had  a  prisoner  brought  before  it,  and  re- 
manded him  to  custody,  that  prisoner  might  come 
before  the   Supreme  Court,    and  obtain  a  writ  of 

1  [Ex  parte  Yerger,  8  Wall.  85.] 


220      JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

habeas  corpus,  a  writ  of  scire  facias,  or  a  writ  of 
certiorari,  to  send  up  the  record  of  the  Circuit 
Court ;  and  the  Supreme  Court,  under  these  writs, 
could  take  jurisdiction,  and  revise  the  proceedings 
of  the  Circuit  Court,  and  release  or  remand  the 
prisoner,   as  required  by  law." 

Later,  by  the  Act  of  March  3,  1885  (23  Stat.  437) 
the  appellate  power  of  the  Supreme  Court  over  the 
inferior  Federal  courts,  in  matters  of  habeas  corpus^ 
was  expressly  restored.!  This  act  was  an  amend- 
ment of  Revised  Statutes,  sects.  763,  764,  765,  — ■ 
all  of  which  were  repealed  by  the  Act  of  March  3, 
1891.'^  That  act,  however,  the  Supreme  Court  have 
held,  applies  to  habeas  corpus,  as  to  all  other  suits 
begun  in  the  Circuit  or  District  Court;  and  some 
of  these  suits  are  made  appealable  to  the  Supreme 
Court,  and  some  to  the  Circuit  Court  of  Appeals. 

The  Act  of  1891,  as  the  reader  will  remember, 
provides  first  that  certain  enumerated  cases  shall 
be  appealable  directly  to  the  Supreme  Court, 
These  are  (1)  cases  where  the  jurisdiction  of  the 
Courtis  in  question;  (2)  prize  causes;  (3)  cases  of 
capital  or  otherwise  infamous  crime ;  (4)  cases 
involving  the  construction  or  application  of  the 
Constitution  of  the  United  States ;  (5)  cases  involv- 
ing the  constitutionality  {not  the  construction)  of 
any  law  of  the  United  States  (or  any  treaty),  and 
(6)  cases  involving  the  constitutionality  of  State 
Constitutions  or  laws.  Now,  most  cases  of  habeas 
corpus,  in  the  Circuit  or  District  Courts,  are  cases 
which  come  under  one  or  another  of  these  heads, 

1  [See  Cross  v.  Burke,  146  U.  S.  82.] 

2  [In  re  Lemon,  150  U.  S.  393.] 


HABEAS   CORPUS.  221 

and    consequently   are   appealable   directly   to   the 
Supreme  Court.  ^ 

But  suppose,  for  instance,  that  a  case  involves 
the  construction  (not  the  constitutionality)  of  a  law 
of  the  United  States,  so  that  it  is  not  appealable 
to  the  Supreme  Court.  For  example,  vmder  the 
Chinese  Exclusion  Act  (a  statute  of  the  United 
States)  a  Chinaman  was  arrested  and  detained  in 
San  Francisco  by  a  United  States  official.  He 
applied  to  the  Circuit  Court  for  a  writ  of  habeas 
corpus.  That  court  refused  it,  and  he  then  appealed 
to  the  Circuit  Court  of  Appeals,  and  ultimately  the 
case  came  before  the  Supreme  Court. ^  The  sole 
point  at  issue  was  the  construction  of  the  United 
States  statute  in  question.  Was  the  case  appeal- 
able to  the  Circuit  Court  of  Appeals,  and  if  so,  was 
it  final  in  that  court  1  The  Act  of  1891,  after  pro- 
viding, as  has  just  been  said,  for  certain  cases 
appealable  directly  to  the  Supreme  Court,  then 
goes  on  to  say  that  all  other  suits  shall  be  appeal- 
able to  the  Circuit  Court  of  Appeals,  and  in  this 
general  designation  habeas  corpus  suits  are  of  course 
included.  Next,  the  statute  states  that  as  to  cer- 
tain suits,  which  it  enumerates,  the  jurisdiction  of 
the  Circuit  Court  of  Appeals  shall  be  final ;  but 
this  list  does  not  include  habeas  corpus  suits. 
Finally  the  statute  declares  that  "In  all  cases 
not  hereinbefore  in  this  section  made  final,  there 
shall  be  of  right  an  appeal  or  writ  of  error  or  review 
of   the   case  by  the  Supreme  Court  of  the  United 

1  [Such  appeals  must  be  taken  within  six  months.    In  re  Lennon, 
150  U.  S.  393,  399.] 

2  ILmi  Ow  Bew,  144  U.  S.  47.} 


222      JURISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 

States,  where  the  matter  in  controversy  shall  exceed 
'flOOO  besides  costs."  A  habeas  corpus  suit,  like 
that  now  under  consideration,  comes  within  the 
first  part  of  this  section,  since  it  is  not  "herein- 
before made  final,"  but  it  does  not  fulfil  the  require- 
ment as  to  !|1000,  inasmuch  as  it  involves  no  money 
whatever.  Therefore  there  is  no  appeal,  of  right, 
from  the  Circuit  Court  of  Appeals;  and  since  no 
appeal  is  provided,  it  is,  by  implication,  "made 
final "  in  the  Circuit  Court  of  Appeals.  It  there- 
fore comes  within  that  other  clause  of  the  statute 
which  provides  that  the  Circuit  Court  of  Appeals 
may  certify  a  cause  "made  final"  in  that  court  to 
the  Supreme  Court,  and,  further,  that  the  Supreme 
Court  may  require  this  to  be  done  if,  in  a  proper 
case,  the  Circuit  Court  of  Appeals  has  declined  or 
neglected  to  do  it.  Such  at  least  are  the  conclu- 
sions of  the  Supreme  Court  in  Lau  Ow  Bew.^ 

If,  therefore,  a  habeas  corpus  suit,  arising  in  a 
Circuit  or  District  Court,  does  not  involve  — as  it 
usually  does  —  one  of  those  questions  which  are  ap- 
pealable directly  to  the  Supreme  Court,  it  is  appeal- 
able to  the  Circuit  Court  of  Appeals,  and  is  "made 
final  "  there,  and  can  be  taken  thence  to  the  Supreme 
Court  only  by  certificate  of  the  Circuit  Court  of 
Appeals,  or  by  writ  of  certiorari  issued  by  the 
Supreme  Court.  ^  When  the  writ  of  habeas  corpus 
is  issued  by  a  Circuit  Judge,  and  made  returnable 
before  him,  not  before  the  Circuit  Court,  there  is 
no  appeal  from  his  decision.  ^ 

1  [144  U.S.  47.] 

2  [Such  a  case  wa.s  United  States  v.  Pridyeon,  153  U.  S.  48.') 
8  [2  Foster's  Federal  Practice,  p.  751.] 


HABEAS   CORPUS.  223 

In  King  v.  McLean  Asylum,^  it  was  held  by  the 
Circuit  Court  of  Appeals  for  the  first  Circuit,  upon 
due  consideration,  that  a  petition  for  a  writ  of 
habeas  corpus,  brought  by  a  citizen  of  one  State 
against  a  citizen  of  another  State  is  a  "  controversy  " 
between  citizens  of  different  States,  and  conse- 
quently that  the  Circuit  Court  has  original,  and 
the  Circuit  Court  of  Appeals  appellate  jurisdiction 
over  it. 

But  this  is  not  the  whole  of  the  so-called  appel- 
late jurisdiction  of  the  Supreme  Court  in  cases  of 
habeas  corpus.  If  a  person  is  deprived  of  his 
liberty,  under  the  circumstances  detailed  in  Revised 
Statutes,  sec.  753  (page  218,  supra),  in  the  course  of 
a  suit  in  a  Circuit  or  District  or  Territorial  Court, 
—  as,  for  instance,  if,  being  a  United  States  officer, 
he  is  wrongly,  as  he  alleges,  indicted  for  embezzle- 
ment, —  he  may  then  apply  to  the  Supreme  Court 
for  a  writ  of  habeas  corpus,  and  in  a  proper  case  the 
Supreme  Court  will  issue  the  writ,  and  also  a  writ 
of  certiorari  to  bring  up  the  record.  ^ 

It  is  important  to  distinguish  between  this  and 
the  former  class  of  cases.  In  the  former  class,  the 
writ  of  habeas  corpus  is  granted,  or  refused,  by  the 
Circuit  or  District  Court,  to  release  a  person  held 
under  authority  of  a  State  tribunal ;  and  in  these 
cases  the  appeal  is  to  the  Supreme  Court  or  to  the 
Circuit  Court  of  Appeals,  accordingly  as  the  case  is 
provided  for  in  the  Act  of  March  3,  1891.  But  in 
the  latter  class  of  cases,  the  writ  of  habeas  corpus 
is  granted  by  the  Supreme  Court  itself  to  release  a 

1  [64  Fed.  Rep.  331.] 

2  [See  In  re  Bonner,  151  U.  S.  242.] 


224      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

person  held  under  authority  of  a  Circuit  or  District 
or  Territorial  Court,  and  it  is  accompanied  by  a 
writ  of  certiorari  to  bring  up  the  record.  This 
jurisdiction  is  not  expressly  conferred  by  statute, 
but  it  is  derived,  as  we  have  seen,  from  the  author- 
ity of  the  Supreme  Court  to  issue  all  necessary 
writs.  1  It  miglit  be  contended,  and  it  may  yet  be 
held,  that  to  these  cases  also  the  Act  of  March  3, 
1891,  applies;  and  that  application  for  the  writ 
should  be  made  either  to  the  Supreme  Court  or  to 
the  Circuit  Court  of  Appeals,  according  to  the  nature 
of  the  case.  But  the  Supreme  Court  have  intimated 
that  this  jurisdiction  is  not  affected  by  that  act.^ 

As  we  have  seen  already,  it  is  not  always  neces- 
sary for  a  person  imprisoned  by  a  State  tribunal, 
contrary,  as  he  alleges,  to  the  Constitution  or  laws 
of  the  United  States,  to  wait  until  his  case  has 
finally  been  passed  upon  by  the  highest  court  in 
the  State  which  is  open  to  him.  He  may  apply  at 
any  time  to  the  Circuit  or  District  Court  for  a  writ 
of  habeas  corpus;  and  if  the  decision  be  against 
him,  he  may,  as  we  have  seen,  appeal  to  the 
Supreme  Court  or  to  the  Circuit  Court  of  Appeals 
according  as  his  case  falls  within  one  or  the  other 
class  of  cases  distributed  by  the  Act  of  March  3, 
1891. 

It  is  doubtful  whether  the  Supreme  Court  has 
power  to  issue  an  original  writ  of  habeas  corpus  for 
the  release  of  a  person  imprisoned  by  State  author- 
ity,3  except,  of  course,  in  "cases  affecting  ambassa- 

1  [Ex  parte  Yerger,  8  Wall.  85.] 

2  [See  In  re  Lcnnon,  150  U.  S.  393,  at  p.  400.] 

3  [See  Ex  parte  Roijall,  117  U.  S.  254.] 


HABEAS   COKPUS.  225 

dors,  other  public  ministers  and  consuls,  and  those 
in  which  a  State  shall  be  a  party."  Of  these  cases, 
as  the  reader  will  remember,  the  Supreme  Court 
has  original  jurisdiction. 

Application  for  the  writ  of  habeas  corpus  may  be 
made  to  the  Circuit  or  District  Court  before  trial 
in  the  inferior  State  court,  or  after  conviction  in 
that  court,  and  before  trial  in  the  State  Court  of 
Appeals.  But  the  Federal  courts  commonly  decline 
to  interfere  before  final  conviction,  except  in  cases 
of  urgency.^  In  ordinary  cases  they  leave  the 
defendant  to  his  right,  after  final  conviction  in  the 
State  court  of  highest  resort  open  to  him,  to  carry 
the  Federal  question  involved  to  the  United  States 
Supreme  Court  by  writ  of  error.  ^ 

Thus  in  New  York  v.  Eno,^  the  defendant  had 
been  indicted  by  a  State  court  for  forgery  com- 
mitted in  his  capacity  as  president  of  a  national 
bank.  He  applied  to  the  Circuit  Court  for  a  writ 
of  habeas  corpus  on  the  ground  that  the  alleged 
offence  was  one  against  the  United  States,  not 
against  the  State,  and  consequently  that  his  impris- 
onment by  the  State  was  unconstitutional.  The 
Circuit  Court  released  him;  but  the  State  appealed, 
and  the  Supreme  Court  reversed  the  decision  of  the 
Circuit  Court.     They  said :  — 

"  Whether  an  offence  described  in  an  indictment 
in  a  State  court  is  an  offence  against  the  laws  of 
that  State,  ...   or  whether  it  is  made  by  Federal 

1  [Such  a  case  was  In  re  Loney,  134  U.  S.  372.] 

2  [See  In  re  Frederick,  149  U.  S.  70,  77  ;  Pepke  v.  Cronan,  155  U.  S. 
100.] 

3  [155  U.  S.  89.     See  also  Ornelns  v.  Eniz,  161  U.  S.  502.] 

15 


226      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

statutes  an  offence  against  the  United  States, 
exclusively  cognizable  by  their  courts,  and  whether 
the  same  act  may  be  an  offence  against  both  national 
and  State  governments,  punishable  in  the  tribunals 
of  each,  without  infringing  upon  the  constitutional 
guaranty  against  being  twice  put  in  jeopardy  [of 
life]  or  limb  for  the  same  offence ;  these  are  ques- 
tions which  the  State  court  of  original  jurisdiction 
is  competent  to  decide  in  the  first  instance. " 

In  this  case,  if  Eno  had  finally  been  convicted  by 
the  appellate  court  of  the  State,  he  might  then 
have  applied  to  the  Supreme  Court  for  a  writ  of 
error.  When  a  case  comes  up  in  this  way  from  the 
State  court,  or  when  it  is  brought  up  from  the  Cir- 
cuit or  District  Court  by  a  writ  of  habeas  corpus, 
and  a  writ  of  certiorari,  in  the  manner  already 
described,  the  Supreme  Court  will  not  consider 
matters  of  fact,  or  collateral  points  of  law,  but  only 
whether  or  not  the  judgment  of  the  court  below  is 
void  as  being  contrary  to  the  United  States  Consti- 
tution or  laws.^  On  the  other  hand,  when  a  habeas 
corpus  case  is  taken  by  appeal  from  the  Circuit  or 
District  Court  to  the  Supreme  Court  or  to  the  Cir- 
cuit Court  of  Appeals,  the  appellate  court  will 
consider  "  all  questions  of  law  or  fact  arising  upon 
the  record,  including  the  evidence.  "^ 

Moreover,  the  writ  of  habeas  corpus  cannot  be 
used  to  perform  the  office  of  a  writ  of  error.  ^  It  is 
never  granted  except  when  the  judgment  complained 
of  is  alleged  to  be  absolutely  void  under  the  Con- 

1  [In  re  Tyler,  149  U.  S.  164,  180] 

2  [Johnson  v.  Sanre,  158  U.  S.  109,  115.] 

8  [Ex  parte  Siebold,  100  U.  S.  371  ;  In  re  Boyd,  49  Fed.  Rep.  48.] 


HABEAS    CORPUS.  227 

stitutioii  or  laws  of  the  United  States,  either 
because  the  court  had  no  jurisdiction,  ^  or  because 
the  statute  under  which  the  defendant  was  con- 
victed, was  unconstitutional  or  contrary  to  a  statute 
of  the  United  States.  An  erroneous  judg-ment  is 
no  ground  for  a  writ  of  habeas  corpus.  Thus  in  a 
recent  case  the  court  say :  "  If  an  indictment  in  a 
State  court,  under  statutes  not  void  under  the  Con- 
stitution of  the  United  States,  be  defective  accord- 
ing to  the  essential  jjrinciples  of  criminal  procedure, 
an  error  in  rendering  judgment  upon  it  —  even  if 
the  accused  at  the  trial  objected  to  it  as  insufficient 
—  should  not  be  made  the  basis  of  jurisdiction  in  a 
court  of  the  United  States  to  issue  a  writ  of  habeas 
corpus. "]  ^ 

^  [See  In  re  Tyler,  Petitioner,  149  U.  S.  164,  180;  In  re  Swan, 
Petitioner,  150  U.  S.  637,  648.] 

^  [Bergemann  v.  Backer,  157  U.  S.  655,  659.] 


228      JUKISDICTION,   PRACTICE,   AND    JURISPRUDENCE. 


CHAPTER  VIII. 

PROCEDURE   AND    PRACTICE. 

The  subject  of  several  of  the  last  Lectures  has 
been,  as  you  know,  the  jurisdiction  of  the  Circuit 
Courts  of  the  United  States,  and  jurisdiction,  as 
you  also  know,  is  the  power  to  entertain  a  suit. 
Whatever  is  done  in  the  exercise  of  that  jurisdic- 
tion must  be  done  in  accordance  with  different 
rules  of  law  from  those  which  prescribe  the  juris- 
diction itself.  The  first  question  which  a  court  has 
to  consider,  always,  is  the  question  whether  it  has 
the  power  to  entertain  the  suit  at  all.  The  second 
question  is,  if  it  has  the  power  to  entertain  it,  what 
shall  be  the  rules  of  decision  by  which  the  result 
in  favor  of  the  one  party  or  the  other  shall  be 
reached. 

Having  gone  through  with  the  consideration  of 
the  jurisdiction  of  the  Circuit  Courts,  I  now  come 
to  the  other  inquiry,  By  what  rules  of  decision  are 
the  results  of  suits  over  which  they  have  jurisdic- 
tion to  be  reached?  Here  it  will  be  necessary  for 
you  to  bear  in  mind  that  the  Constitution  of  the 
United  States,  and  the  Acts  of  Congress  framed  in 
accordance  with  it,  have  recognized  three  distinct 
kinds  of  jurisprudence  to  be  administered  in  their 


PKOCEDURE    AND    PKACTICE.  229 

courts  in  civil  cases.  The  first  is  the  common  law, 
the  second  is  equity  law,  and  the  third  is  admiralty- 
law;  and  in  inquiring  what  are  to  be  the  rules  of 
decision  administered  by  the  Circuit  Courts  of  the 
United  States,  it  is  necessary  to  keep  this  distinc- 
tion constantly  in  view. 

In  the  first  place,  I  will  ask  your  attention  to 
what  are  the  rules  of  decision  in  trials  at  the 
common  law.  That  is  provided  for  by  this  Judi- 
ciary Act,  to  which  I  have  had  occasion  so  often 
to  call  your  attention,  in  its  thirty-fourth  section, 
which  reads  as  follows :  — 

"That  the  laws  of  the  several  States,  except 
where  the  Constitution,  treaties,  or  statutes  of  the 
United  States  shall  otherwise  require  or  provide, 
shall  be  regarded  as  rules  of  decision  in  trials  at 
common  law  in  the  courts  of  the  United  States  in 
cases  where  they  apply. "  ^ 

So  that  in  accordance  with  this  Act  of  Congress, 
in  any  trial  which  at  common  law  occurs  in  a  Cir- 
cuit Court,  what  the  practitioner  has  to  inquire,  or 
what  the  court  has  to  know,  is  what  is  the  law  of 
the  State. '-^  If  it  is  a  question  whether  a  claim  is 
barred  by  the  statute  of  limitations,  or  if  it  is  a 
question  whether  a  contract  is  valid  or  invalid  by 

1  Re-enacted,  in  the  same  words,  In  §  721  of  the  I?evised  Statutes. 

"  [It  was  an  open  question,  until  recently,  whether  State  statutes 
applied  as  "  rules  of  decision  "  to  causes  of  which  the  Federal  Courts 
have  exclusive  jurisdiction,  as,  for  instance,  to  patent  suits.  The 
Supreme  Court  have  recently  decided  that  they  do  so  apply,  and  that 
a  suit  to  recover  damages  for  infrini^enient  of  a  j)atent  is  barred  by  a 
State  statute  of  limitations.  See  C<im/il>pll  v.  Citi/  of  Ilnrerhill,  1.5.5 
U.  S.  610.  The  Circuit  Courts  were  divided  about  equally  upon  this 
question.] 


230      JURISDICTION,  PRACTICE,   AND    JURISPRUDENCE. 

reason  of  the  statute  of  frauds,  or  if  the  question 
be  of  any  other  character,  with  some  exceptions, 
to  which  I  shall  presently  ask  your  attention,  the 
inquiry  is.  What  is  the  law  of  the  State?  and 
that  law  is  to  be  administered  in  trials  at  com- 
mon law  in  the  Circuit  Courts  of  the  United 
States.  It  is  to  be  observed,  however,  that  this 
has  reference  only  to  civil  cases;  it  has  no  applica- 
tion to  criminal  trials.  It  is  for  the  government 
of  rights  between  party  and  party,  in  civil  cases, 
in  trials  at  the  common  law,  that  this  section  was 
made. 

Now,  the  first  inquiry  which  would  be  found  to 
arise  in  practice  is.  Who  is  to  determine  what  is 
the  law  of  the  State  ?  A  question  arises  upon  the 
construction  of  the  statute  of  a  State,  or  upon  a 
rule  of  practice  in  a  State,  or  upon  a  commercial 
contract  made  in  a  State,  or  in  a  great  variety  of 
other  cases;  who  is  to  decide  ultimately  what  is 
the  law  of  the  State  upon  that  particular  question 
arising  in  that  case  ?  Well,  you  would  naturally 
say  the  Supreme  Court  of  the  State,  which  has  been 
intrusted  by  the  constitution  of  the  State  with  the 
ultimate  decision  of  such  questions,  should  be 
the  tribunal  to  decide  ultimately  what  the  law  of 
the  State  is  upon  any  particular  question;  and  that 
is  in  general  true.  The  question  being  what  the 
law  of  the  State  is  which  is  to  be  administered  in 
a  particular  case,  if  there  can  be  found  in  the  deci- 
sions of  the  highest  court  of  that  State,  intrusted 
with  the  construction  of  its  statutes  and  the  inter- 
pretation and  application  of  its  common  law,  a 
well-settled  rule,  in  general  that  is  to  be  deemed 


PROCEDURE   AND   PRACTICE.  231 

the  law  of  that  State.  ^  But  then  it  has  been  found, 
or  supposed  to  be  found,  that  on  some  subjects 
there  has  been  such  unsteadiness  in  the  decisions 
of  the  State  courts  that  the  Supreme  Court  of  the 
United  States  have  been  forced  to  adopt  certain 
views  in  regard  to  the  decisions  of  the  highest 
courts  of  the  State,  when  they  come  to  be  applied 
in  the  courts  of  the  United  States,  to  ascertain 
what  the  State  law  is ;  and  therefore  it  cannot  be 
said  to  be  a  universal  rule,  that,  because  a  question 
has  been  settled  by  the  Supreme  Court  of  a  State, 
the  decision  will  be  adopted  by  the  courts  of  the 
United  States ;  and  I  now  propose  to  indicate  to 
you  the  different  classes  of  cases  in  which  it  is 
understood  that  the  decisions  of  the  State  courts 
are  final  and  binding  upon  the  courts  of  the  United 
States  concerning  what  is  the  law  of  the  States, 
and  those  in  which  they  have  not  been  considered 
to  be  final  and  binding. 

In  the  first  place  let  me  refer  you  to  the  case  of 
Webster  v.  Cooper,  14  Howard,  488,  504,  in  which 
it  is  said  :  — 

"The  thirty-fourth  section  of  the  Judiciary  Act, 
as  well  as  the  rule  of  general  jurisprudence  as  to 
the  operation  of  the  lex  loci  upon  titles  to  land 
[that  is  the  subject  of  inquiry  here],  requires  us  to 
determine  this  case  according  to  the  law  of  the 
State  of  Maine.  In  ascertaining  what  that  law  is, 
this  court  looks  to  the  decisions  of  the  highest 
court  of  that  State ;  and  where  the  question  turns 

1  [Even  in  matters  of  local  law,  where  there  is  no  statute  concerned, 
the  Federal  courts  will  follow  the  decisions  of  the  State  Courts.  See 
Detroit  v.  Osborne,  135  U.  S.  492,  — an  extreme  case.] 


232      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

upon  the  construction  to  be  given  to  the  constitu- 
tion of  the  State,  and  we  find  a  construction  made 
by  the  highest  State  court  very  soon  after  the  con- 
stitution was  formed,  acquiesced  in  by  the  people 
of  the  State  for  nearly  thirty  years,  and  repeatedly 
confirmed  by  subsequent  judicial  decisions  of  that 
court,  we  cannot  hesitate  to  adopt  it  and  apply  it 
to  this  case,  to  which,  in  our  judgment,  it  is  justly 
applicable.  .  .  .  The  question  has  usually  been 
concerning  the  construction  of  a  statute  of  a  State ; 
but  we  think  there  is  no  sound  distinction  between 
the  construction  of  a  law  enacted  by  the  legislature 
of  a  State,  and  the  construction  of  the  organic  law 
ordained  by  the  people  themselves.  The  exposition 
of  both  belongs  to  the  judicial  department  of  the 
government  of  the  State,  and  its  decision  is  final 
and  binding  upon  all  other  departments  of  that 
government,  and  upon  the  people  themselves  until 
thev  see  fit  to  change  their  constitution;  and  this 
court  receives  such  a  settled  construction  as  part  of 
the  fundamental  law  of  the  State, " 

This,  as  you  perceive,  is  in  reference  both  to  the 
construction  of  State  statutes  and  constitutional 
questions ;  the  one  being  enacted  by  the  legislature 
and  the  other  by  the  people.  You  will  find  occur- 
ring in  the  course  of  this  passage  which  I  have  read 
to  you  a  reference  to  a  decison  made  by  the  Supreme 
Court  of  the  United  States,  that  in  the  exposition 
of  State  statutes  and  of  the  constitutions  of  the 
States,  the  Supreme  Court  of  the  United  States 
follow  the  decisions  of  the  highest  courts  of  the 
State ;  and  the  same  rule  has  been  applied  by  the 
Supreme    Court   to   questions   concerning  land,  — 


PROCEDURE  AND  PRACTICE.         233 

real  property  in  a  State ;  and  if  you  will  refer  to 
the  case  of  Jackson  v.  Chew,  12  Wheaton,  167,  you 
will  find  the  rule  there  stated,  that  whenever  there 
is  a  well-considered  decision  by  the  Supreme  Court 
of  a  State  concerning  title  to  lands,  that  will  be 
received  as  the  official  and  final  exposition  of  the 
law  of  the  State  upon  that  question.  The  question 
in  Jackson  v.  Chew  was  whether  the  statute  of  uses 
existed,  and  should  be  applied,  in  the  State  of  New 
York,  I  think  it  was;  and  the  highest  courts  of 
the  State  of  New  York  having  decided  that  the 
statute  of  uses  did  exist  there,  although  not  enacted, 
—  existed  as  part  of  its  common  law  derived  from 
the  statute  of  Henry  the  Eighth,  brought  over  by 
those  who  settled  the  State,  —  that  rule  would  be 
applied  by  the  Supreme  Court  of  the  United  States, 
just  as  it  would  be  applied  by  the  Supreme  Court  of 
New  York  if  the  same  question  arose  there.  ^ 

We  now  come  to  a  different  class  of  cases,  and 
the  first  of  them  is,  cases  which  turn  upon  ques- 
tions of  commercial  law  and  general  jurisprudence. 
You  can  easily  perceive  the  distinction  between 
this  class  of  cases,  —  the  exposition  of  the  statutes 
and  of  the  constitution  of  a  State,  and  the  decisions 

1  On  this  class  of  questions,  where  the  construction  of  State  stat- 
utes affecting  the  title  to  lands  is  to  be  ascertained,  the  Supreme 
Court  of  the  United  States  follows  the  last  decision  of  the  Supreme 
Court  of  the  State.  Toivnsend  v.  Todd,  91  U.  S.  452.  But  in  any 
case,  there  must  be  a  real  and  direct  construction  of  a  State  statute 
by  the  State  court.  If  the  decision  of  the  State  court  was  made 
upon  general  principles,  and  is  not  a  declaration  that  the  statute  so 
declares  the  law,  the  Supreme  Court  of  the  United  States  will  follow 
its  own  construction  of  the  law.  Town  of  Venice  v.  Murdoch, 
92  U.  S.  494.  —  See  Note  at  the  end  of  this  Lecture,  on  the  Existence 
of  State  Statutes. 


234      JURISDICTION,   PKACTICE,   AND   JURISPRUDENCE. 

of  the  highest  court  of  a  State  concerning  the  rules 
of  real  property  in  the  State,  and  questions  of  com- 
mercial law  and  general  jurisprudence  ;i  and  on 
these  questions  the  courts  of  the  United  States  do 
not  hold  themselves  bound  by  the  decisions  of  the 
courts  of  the  States,  where  they  are  trying  cases 
that  do  not  belong  any  more  to  the  jurisprudence  of 
that  particular  State  than  they  do  to  the  jurispru- 
dence of  any  other  State.  They  are  questions 
which  belong  to  the  general  law  of  all  States  and 
of  the  commercial  world,  and  therefore  the  Supreme 
Court  of  the  United  States  holds  itself  to  be  compe- 
tent to  decide  these  questions  as  it  conceives  they 
are  required  by  principle  to  be  decided. 

As  a  statement  of  this  view  I  will  refer  you  to  a 
short  passage  found  in  the  case  of  the  G-loucester 
Insurance  Co.  v.  Younger.,  2  Curtis's  Circuit  Court 
R.  322,  as  a  convenient  mode  of  turning  your  at- 
tention to  the  authorities  on  that  subject: 

"  This  being  a  question  not  of  mere  local  muni- 
cipal law,  but  arising  under  the  law  merchant, 
though  this  court  must  consider  with  unaffected 
respect  the  decisions  of  that  court  [that  is,  the 
Supreme  Court  of  Massachusetts]  on  this  question, 
yet  they  are  not  binding  on  our  judgments,  and  we 
have  no  right  to  conform  to  them  when  we  believe 
they  do  not  announce  the  true  rule.  This  is  the 
settled  doctrine  of  the  Supreme  Court  of  the  United 

1  [Balkam  v.  Woodstock  Iron  Co.,  154  U.  S.  177;  Bamberger  v. 
Schoolfield,  160  U.  S.  149.  In  a  case  which  arose  in  Massachusetts 
it  was  not  easy  to  deterniiue  whether  the  question  at  issue  really 
depended  upon  a  certain  local  statute,  or  upon  a  general  principle 
of  common  law.     Bucher  v.  Cheshire  R.  R.  Co.,  125  U.  S.  555.] 


PEOCEDUEE  AND  PEACTICE.         235 

States,  and  has  been  frequently  applied  in  this 
court,"  —  and  then  the  decisions  are  cited,  and  are 
brought  into  convenient  proximity,  so  that  you  can 
turn  to  them  if  you  wish.  This  doctrine  was  first 
annouced  authoritatively  and  explained  in  the  case 
of  Swift  V.  Tyson,  16  Peters,  1;  but  it  is  stated 
with  sufficient  distinctness  in  the  passage  which  I 
have  read  to  you  from  2  Curtis's  Circuit  Courts 
Reports.  ^ 

There  is  another  subject  upon  which  the  Supreme 
Court  of  the  United  States  does  not  hold  itself 
bound,  and  of  course  the  Circuit  Courts  of  the 
United  States  also,  by  the  decisions  of  the  State 
courts.  You  are  aware  that,  under  the  Constitu- 
tion of  the  United  States,  a  State  is  prohibited 
from  passing  any  law  which  impairs  the  obligation 
of  a  contract.  Now  the  question  whether  there  is 
a  contract  or  not  is  a  question  arising  under  the 

1  [See  also  Liverpool  Steam  Co.  v.  Phenix  Insurance  Co.,  129 
U.  S.  397,  443 ;  Baltimore  c^-  Ohio  R.  R.  Co.  v.  Bamjh,  149  U.  S.  368 ; 
Phipps  V.  Harding,  70  Fed.  Rep.  468.  But  when  the  common  law 
upon  any  given  subject  has  been  changed  by  a  State  statute,  the 
Federal  courts  in  that  State  are,  as  a  rule,  bound  to  follow  the  sta- 
tute. Thus  in  a  Michigan  case  involving  the  question  whether  the 
employees  of  a  certain  railroad  had  been  negligent  in  giving  notice 
of  an  approaching  train,  there  was  a  State  statute  which  prescribed 
how  such  notice  should  be  given,  and  in  construing  it  the  Supreme 
Court  said :  "  If  the  construction  of  this  statute  by  the  Michigan 
courts  be  as  claimed  [sic]  by  the  defendants,  of  course  this  court 
would  feel  constrained  to  adopt  the  same  construction,  even  if  we 
thought  it  in  conflict  with  fundamental  principles  of  the  law  of  neg- 
ligence." Gra,id  Trunk  Ry.  Co.  v.  Ires,  144  U.  S.  408,  422.  See 
also  Northern  Pacific  R.  R.  Co.  v.  Horjan,  63  Fed.  Rep.  102.  So  a 
State  statute  of  frauds,  even  as  applied  to  commercial  instruments, 
such  as  promissory  notes,  is  a  rule  of  decision  in  the  Federal  courts. 
Moses  V.  Laurence  County  Bank,  149  U.  S.  298.  See  also  Second 
National  Bank  of  Aurora  v.  Basuier,  65  Fed.  Rep.  58.] 


236     JURISDICTION,   PRACTICE,    AND   JURISPRUDENCE. 

laws  of  the  State  where  the  contract  is  supposed 
to  have  been  made ;  and  if  the  State  courts  were 
authorized  to  decide  that  question  finally,  you  will 
readily  see  that  this  power  of  revision  which  resides 
in  the  Supreme  Court  of  the  United  States  to  deter- 
mine whether  the  State  law  has  impaired  the  obli- 
gation of  a  contract  would  be  of  very  little  utility, 
because  it  would  be  only  for  the  State  court  to 
decide  there  was  no  contract,  and  that  would  be 
an  end  to  the  question.  Therefore  it  has  been  held 
by  the  Supreme  Court  of  the  United  States,  that 
the  question  whether  there  is  a  contract  is  a  ques- 
tion for  them  finally  to  decide ;  and  the  decision  of 
a  State  court,  that  upon  the  facts  and  upon  the  law 
of  the  State  there  was  no  contract,  is  not  binding 
upon  the  Supreme  Court  of  the  United  States. 
This  is  the  doctrine  of  the  court  announced  in  the 
case  of  Ohio  Life  and  Trust  Company  v.  Debolt,  16 
Howard,  432.  I  have  not  the  book  before  me,  but 
you  will  find  by  looking  at  the  passage  that  the 
Chief  Justice  who  gave  that  opinion  says  that  it  is 
the  duty  of  the  Supreme  Court,  in  the  first  place, 
to  determine  whether  there  was  a  contract,  and, 
second,  to  decide  whether  the  law  of  the  State  com- 
plained of  violated  the  obligation  of  that  contract. 
Another  class  of  cases  in  which  the  decisions  of 
the  State  courts  have  been  held  not  to  be  final  has 
arisen  out  of  changes  in  their  decisions ;  and  per- 
haps I  can  make  that  plain  to  you  better  by  stating 
a  particular  case  in  which  the  question  arose,  and 
concerning  which  there  has  been  a  great  deal  of 
litigation,  which  has  finally  resulted  in  the  settle- 
ment of  the  principle  which  I  will  announce.     The 


PEOCEDURE  AND  PRACTICE.  237 

State  of  Iowa  authorized  its  municipal  bodies,  its 
cities  and  its  counties,  to  issue  bonds  to  aid  m  the 
construction  of  railroads.  The  bonds  were  issued 
and  sold  in  the  market,  were  taken  in  good  faith  by 
those  who  had  occasion  to  invest  capital,  or  who 
were  induced  by  other  reasons  to  take  the  bonds, 
and  the  question  arose  whether  that  was  a  constitu- 
tional act,  authorizing  those  municipal  bodies  to 
issue  these  bonds.  It  was  held  by  the  Supreme 
Court  of  the  State  that  it  was  a  constitutional  act. 
Thereupon  the  sale  of  the  bonds  proceeded,  and, 
under  the  authority  of  this  decision,  confiding  in 
its  soundness,  very  large  amounts  of  these  bonds 
were  issued.  They  finally  became  very  burdensome 
to  the  people  of  Iowa  and  those  communities  that 
had  issued  them,  and  there  was  a  great  change  in 
the  popular  sentiment  of  the  State;  and  in  conse- 
quence of  that,  their  judges  being  elective,  new 
judges  were  elected,  and  a  different  decision  made, 
—  that  the  legislature  of  the  State  had  no  constitu- 
tional power  to  authorize  the  cities  and  towns  and 
counties  to  issue  those  bonds.  The  question  came 
before  the  Supreme  Court  of  the  United  States, 
whether  the  bonds  were  valid,  and  these  more 
recent  decisions  were  relied  upon  to  show  that,  by 
the  law  of  Iowa,  the  legislature  had  no  constitu- 
tional right  to  authorize  these  corporations  to  issue 
the  bonds.  The  court,  however,  decided  that,  inas- 
much as  at  the  time  when  the  bonds  were  issued 
there  was  a  decision  of  the  highest  court  of  that 
State  that  this  constitutional  authority  did  exist, 
no  subsequent  decision  could  affect  the  validity  of 
those  bonds,  and  therefore  they  must  be  held  to  be 


238      JUKISDICTION,    PRACTICE,   AND    JURISPEUDENCE. 

valid.  This  decision  you  will  find  in  the  case  of 
Gelpcke  v.  Dubuque,  reported  in  1  Wallace,  175. 
Perhaps  I  may  profitably  read  to  you  a  short  pas- 
sage which  states  the  doctrine  upon  which  the  court 
finally  settled,  and  to  which  they  have  ever  since 
adhered,  under  great  opposition,  for  the  interests 
involved  were  so  large  and  so  important  that  the 
subject  has  frequently  been  brought  before  the 
court;  and  the  doctrine  which  I  will  read  to  you  is 
what  the  court  has  ever  since  adhered  to,  and  what 
I  suppose  to  be  now  the  law. 

The  judge  who  delivered  the  opinion,  Mr.  Justice 
Swayne,  says :  — 

"  The  late  case  in  Iowa,  and  two  other  cases  of  a 
kindred  character,  also  overruling  earlier  adjudica- 
tions, stand  out,  as  far  as  we  are  advised,  in  unen- 
viable solitude  and  notoriety.  .  .  .  However  we 
may  regard  the  late  case  in  Iowa  as  affecting  the 
future,  it  can  have  no  effect  upon  the  past. " 

Now  he  comes  to  what  the  true  rule  is :  — 

"  The  sound  and  true  rule  is,  that  if  the  contract, 
when  made,  was  valid  by  the  laws  of  the  State,  as 
then  expounded  by  all  departments  of  the  govern- 
ment, and  administered  in  its  courts  of  justice,  its 
validity  and  obligation  cannot  be  impaired  by  any 
subsequent  action  of  legislation  or  decision  of  its 
courts  altering  the  construction  of  the  law.  The 
same  principle  applies  where  there  is  a  change  of 
judicial  decisions  as  to  the  constitutional  power  of 
the  legislature  to  enact  the  law.  To  this  rule,  thus 
enlarged,  we  adhere ;  it  rests  upon  the  plainest 
principles  of  justice.  It  is  the  law  of  this  court. 
To  hold  otherwise   would  be  as  unjust  as  to  hold 


PKOCEDURE    AND    PRACTICE.  239 

that  rights  acquired  under  statute  may  be  lost  by 
its  repeal.     The  rule  embraces  this  case. "  ^ 

There  is  an  earlier  case  which  was  the  foundation 
of  this  one,  —  the  same  I  referred  to  under  the 
other  head,  —  reported  in  16  Howard,  432,2  where 
there  is  an  opinion  delivered  by  Chief  Justice 
Taney,  which  states  with  great  clearness  the  ground 
upon  which  the  Supreme  Court  is  obliged  to  disre- 
gard this  change  of  decision  in  the  State  courts  in 
regard  to  State  statutes  or  State  constitutions,  when 
it  affects  the  obligation  of  contracts  made  under 
the  faith  of  a  different  interpretation  by  the  courts 
of  the  State  at  the  time  when  the  contract  was 
entered  into. 

I  believe  that  is  all,  gentlemen,  which  I  need  say 
upon  the  subject  of  the  sources  of  jurisprudence. 
To  decide  cases  at  law  in  the  courts  of  the  United 
States,  — civil  cases,  — you  go  to  the  law  of  the 
State,  just  as  you  would  if  you  were  to  try  the  case 

1  [In  Burgess  v.  Selir/mnn,  107  D.  S.  20,  33,  the  court  said: 
"  When  contracts  and  transactions  have  been  entered  into  and  rights 
have  accrued  thereon  under  a  particular  state  of  the  decisions,  or 
■when  there  has  been  no  decision  of  the  State  tribunals,  the  Federal 
Courts  properly  claim  the  right  to  adopt  their  own  interpretation  of 
the  law  applicable  to  the  case,  although  a  different  interpretation 
may  be  adopted  by  the  State  Courts  after  such  rights  have  accrued. 
But  even  in  such  cases,  for  tlie  sake  of  harmony,  and  to  avoid  con- 
fusion, the  Federal  Courts  will  lean  towards  an  agreement  of  views 
with  the  State  Courts  if  the  question  seems  to  them  balanced  with 
doubt."  In  this  case  the  Supreme  Court  sustained  the  construction 
of  a  State  statute  made  by  the  Circuit  Court  in  that  State,  in  spite 
of  a  contrary  decision  made  by  the  State  court  after  the  decision  of 
the  Circuit  Court,  but  bef(ire  argument  in  the  United  States  Supreme 
Court.  See  also  Knox  County  v.  Ninth  Xotiotml  Bank,  147  U.  S.  91, 
99  ;  Forsi/th  v.  City  of  Hammond,  71  Fed.  Rep.  443.] 

2  [Ohio  Life  and  Trust  Co.  v.  Debolt.] 


240      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

in  the  highest  court  of  that  State ;  and,  except  in 
the  class  of  cases  to  which  I  have  adverted,  —  that 
is,  commercial  cases,  and  cases  depending  upon 
general  jurisprudence,  and  questions  concerning 
contracts,  their  existence,  their  validity,  and  ques- 
tions concerning  the  authority  to  make  contracts, 
arisino;  out  of  the  constitution  or  laws  of  the  State 
changing  after  the  contracts  were  made,  —  with 
these  exceptions,  I  think,  you  may  take  it  to  be 
true,  if  you  can  arrive  at  the  law  of  the  State  as  it 
would  be  administered  in  its  own  tribunals,  you 
arrive  at  the  same  time  at  the  law  which  would  be 
administered  in  the  trials  of  civil  cases  at  common 
law  in  the  courts  of  the  United  States.^ 

But  it  is  very  much  otherwise  when  you  come  to 
the  administration  of  equity  law.  The  eleventh 
section  of  the  Judiciary  Act  confers  upon  the  courts 
of  the  United  States  jurisdiction  to  try  all  suits  of 
a  civil  nature  at  common  law  or  in  equity. ^  In 
other  words,  it  confers  upon  the  Circuit  Courts  of 
the  United  States  a  general  equity  jurisdiction;  and 
the  same  inquiry  arises  here  as  in  reference  to  the 
common-law  suits.  Whence  are  the  courts  of  the 
United  States  to  derive  their  rules  of  decision  ? 
The  thirty-fifth  section,  which  I  have  read. to  you, 
applies  to  trials  at  common  law  only ;  it  has  no 
reference  to  equity  proceedings.  Now,  whence  are 
the  Circuit  Courts,  in  the  administration  of  this 
general  equity  jurisprudence,  to  derive  their  rules 
of   decision  ?     The  answer   is,    they  are  to  derive 

1  [Rice  V.  Adkr-Goldman  Commission  Co.,  71  Fed.  Eep.  151.     See 
2  Foster's  Federal  rractice,  p.  776.] 

2  lie-enacted  iu  §  629  of  the  Revised  Statutes. 


PKOCEDURE   AND   PRACTICE.  241 

them  fora  the  equity  law  of  England.  At  the 
time  when  the  Constitution  was  formed,  this  dis- 
tinction between  law  and  equity,  as  known  in  the 
country  from  which  our  ancestors  came,  was  recog- 
nized by  the  Constitution;  and  the  courts  of  the 
United  States  have  uniformly  held  that  the  rules 
of  decision  in  equity  cases  were  the  same  in  all 
the  States,  and  they  are  the  equity  law  which  we 
derive  from  England.  In  the  case  of  Neves  v. 
Scott,  13  Howard,  272,  there  is  a  passage  which  I 
will  read  to  you  (and  the  authorities  are  there 
cited  also)  which  expresses  this  doctrine. 

The  counsel  for  one  of  the  parties,  in  arguing 
this  case,  produced  a  decision  of  the  Supreme  Court 
of  the  State  of  Georgia,  made  between  the  same 
parties  concerning  the  same  subject-matter,  but 
which  was  not  binding  as  a  bar,  and  could  not  be 
pleaded  as  a  bar,  for  technical  reasons,  which  it  is 
unnecessary  to  advert  to  now ;  and  they  insisted  — 
the  question  arose  between  citizens  of  the  State  of 
Georgia  and  citizens  of  some  other  State,  and  the 
contract  in  question,  a  marriage  contract,  was  made 
in  Georgia  —  that  the  decision  of  the  highest  court 
of  that  State  was  binding  as  a  precedent ;  but  the 
Supreme  Court  decided  otherwise.  They  first  state 
the  nature  of  the  questions,  and  show  that  the  ques- 
tions were  questions  of  trust,  —  of  the  extent  and 
nature  of  the  trust  declared  by  the  marriage  settle- 
ment, —  and  that  they  belonged  to  general  juris- 
prudence, and  not  to  the  law  of  Georgia  any  more 
than  to  the  law  of  England  or  any  other  State ;  and 
then  they  proceed  in  this  way :  — 

"Such  being  the  nature  of  the  questions,  we  do 

16 


242      JURISDICTION,    PEACTICE,   AND   JUKISPEUDENCE. 

not  consider  this  court  bound  by  the  decision  of  the 
Supreme  Court  of  Georgia.  The  Constitution  pro- 
vides that  the  judicial  power  of  the  United  States 
shall  extend  to  all  cases  in  equity  arising  between 
citizens  of  different  States.  Congress  has  duly 
conferred  this  power  upon  all  Circuit  Courts,  and, 
among  others,  upon  that  of  the  District  of  Georgia 
in  which  this  bill  was  filed,  and  the  same  power  is 
granted  by  the  Constitution  to  this  court  as  an 
appellate  tribunal. " 

Now  comes  the  principle  which  it  is  desirable 
you  should  bear  in  mind:  — 

"Wherever  a  case  in  equity  may  arise  and  be 
determined  under  the  judicial  power  of  the  United 
States,  the  same  principles  of  equity  must  be  applied 
to  it,  and  it  is  for  the  courts  of  the  United  States, 
and  for  this  court  in  the  last  resort,  to  decide 
what  those  principles  are,  and  to  apply  such  of 
them  to  each  particular  case  as  they  may  find  justly 
applicable  thereto.  These  principles  may  make 
part  of  the  law  of  a  State,  or  they  may  have  been 
modified  by  its  legislation  or  usages;  or  they  may 
never  have  existed  in  its  jurisprudence.  Instances  of 
each  kind  may  now  be  found  in  the  several  States. 
But  in  all  the  States  the  equity  law  recognized  by 
the  Constitution  and  by  acts  of  Congress,  and  modi- 
fied by  the  latter,  is  administered  by  the  courts  of 
the  United  States,  and,  upon  appeal,  by  this  court." 

That  is,  it  is  one  uniform  system  throughout  the 
whole  United  States,  — the  same  in  Massachusetts 
as  in  Georgia  or  California;  and,  in  general,  the 
sources  of  that  law  are  to  be  found,  first,  in  the 
decisions   of    the    Supreme    Court   of    the   United 


PROCEDUEE    AND   PEACTICE.  243 

States ;  second,  in  the  decisions  of  the  Circuit 
Courts  as  reported  in  the  reports  of  the  Circuit 
Courts;  and  lastly,  and  perhaps  I  ought  to  say 
mainly,  in  the  equity  law  of  England,  to  which,  as 
you  know,  you  have  constant  reference  in  studying 
this  subject;  and  whatever  may  have  been  the 
modifications  made  of  the  English  equity  law  in 
the  different  States  by  statute  or  by  custom,  they 
have  no  effect  in  the  courts  of  the  United  States. 

Another  department  of  jurisdiction,  as  you  know, 
is  the  admiralty  law.     It  is  administered  on  appeal 
in  the  Circuit  Courts  ^  of  the  United  States,  but  not 
by  any  original  jurisdiction  except  to  some  small 
extent,  —  nothing  sufficient  to  be  noticed.     In  some 
things  arising  out  of  the  slave-trade  they  have  an 
original  jurisdiction,  but  it  is  of  no  importance  in 
practice.     The  original    jurisdiction  in   admiralty 
cases  may  be  said  to  be  exclusively  in  the  District 
Court  of  the  United    States;  and  therefore  it  is, 
when  I  come  to  speak  of  that  court,  that  I  shall 
speak  of  the  admiralty  jurisprudence  and  practice 
and   methods    of   pleading.     I    might   say  here  in 
passing,  however,  that  the  jurisprudence  which  is 
administered  both  in  the  District  Court,  and   on 
appeal    in  the  Circuit  Court  [of  Appeals],   is   the 
maritime  law  of  the  world.     It  is  not  any  particular 
municipal  system  of  law.     Of  course,  it  has  been 
modified  to  some  extent  by  statutes  of    Congress, 
which  I  shall  notice  when  I  come  to  discuss  that 
part  of  the  subject,  but  the  modifications  are  com- 
paratively unimportant,  and  affect  but  a  small  part 
of  the  subject. 

1  [The  appeal  lies  now  to  the  new  Circuit  Court  of  Appeals.] 


244      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

Besides  having  the  necessary  rules  of  decision, 
which  are  commonly  termed  the  jurisprudence,  of 
the  court,  the  court  must  have  rules  of  pleading 
and  practice  in  order  to  bring  the  subjects  of  the 
different  suits  regularly  before  the  court  in  a 
manner  to  be  dealt  with  and  disposed  of  conven- 
iently and  with  sufficient  certainty.  Now,  to  follow 
out  the  same  division  which  I  have  already  indi- 
cated, and  which  is  a  natural  and  necessary  division, 
we  will  begin  with  the  practice  and  mode  of  plead- 
ing at  law;  and  upon  that,  before  the  1st  of  June, 
1872,  it  might  have  been  —  I  suppose  would  have 
been  —  necessary  for  me  to  say  not  a  little.  But 
by  this  Act  of  the  1st  of  June,  1872,  in  its  fifth 
section,  Congress  has  remitted  this  whole  subject 
to  the  laws  of  the  States ;  so  that  all  I  can  say  upon 
that  matter  is,  that  under  this  Act  of  the  1st  of 
June,  1872,  which  is  found  in  17  Statutes  at  Large, 
197,  you  must  learn  what  the  practice  and  pleading 
and  the  mode  of  proceeding  in  the  State  courts  are, 
and  then,  according  to  this  law,  if  it  should  remain 
in  force,  you  will  know  the  laws  that  are  applicable 
in  suits  in  the  United  States  courts.  The  reason 
why  I  intimate  a  doubt  whether  this  law  will  be 
allowed  to  stand  is,  that  the  practice,  pleading,  and 
the  forms  and  modes  of  proceeding  in  the  State 
courts,  in  other  than  equity  and  admiralty  causes, 
—  for  it  applies  only  to  the  common  law,  ^  are 
really  not  adapted  to  the  courts  of  the  United 
States.  For  instance,  in  the  State  of  Massachusetts 
we  have  departed  as  little  from  the  old  modes  of 
proceeding  at  the  common  law,  both  in  pleading 
and  practice,  as  in  any  State,  with  some  few  excep- 


PROCEDURE   AND    PRACTICE.  245 

tious,  where  they  still  retain  the  common-law 
modes  of  proceeding,  and  far  less  than  they  have 
in  most  of  the  States.  When  a  case  goes  up  from 
the  Superior  Court  in  Massachusetts  to  the  Supreme 
Court,  it  goes  up  on  the  question  of  a  new  trial.  It 
does  not  go  on  a  technical  writ  of  error.  The 
necessities  of  the  two  modes  of  proceeding  are 
totally  different;  and  therefore,  in  my  judgment, 
even  the  Massachusetts  system  would  throw  things 
into  confusion  if  it  should  be  applied  to  carrying 
cases  from  a  Circuit  Court  to  the  Supreme  Court  of 
the  United  States.^  In  some  of  the  other  States 
there  is  very  much  more  looseness  of  proceeding, 
and  the  difficulties  arising  out  of  that  looseness 
would  be  found,  I  think,  to  be  insuperable.  There 
is  another  difficulty  in  this  law,  and  that  is,  it 
says,  "the  practice,  pleadings,  and  forms  and 
modes  of  proceeding,  in  other  than  equity  and 
admiralty  causes,  in  the  Circuit  and  District  Courts 
of  the  United  States,  shall  conform  as  near  as  may 
be  to  the  practice,  pleadings,  and  forms  and  modes 
of  proceeding  existing  at  the  time  in  like  causes  in 
the  courts  of  record  of  the  State. " 

"Existing  at  the  time."  So  that  if  the  legisla- 
ture of  a  State  should  alter,  after  the  1st  of  June, 
1872,  its  own  forms  and  modes  of  proceeding  and 
practice  and  pleading,   according  to  this  law  that 


1  [It  is  held  that  the  Federal  Courts  are  not  bound  by  State  stat- 
utes in  regard  to  pleading,  the  effect  of  -which  would  be  to  enlarge 
or  restrict  the  jurisdiction  of  the  Federal  Courts.  Mexican  Central 
Railway  v.  Pinkney,  149  U.  S.  194;  Holt  v.  Berc/evin,  60  Fed.  Eep.  1. 
So  also  State  statutes  permitting  equitable  defences  to  actions  at  law 
are  not  followed.     Scott  v.  Armstrong,  146  U.  S.  499,  .512  J 


24.6      JUEISUICTION,   PRACTICE,    AND    JUEISPEUDENCE. 

would  go  into  effect  in  the  courts  of  the  United 
States,  whatever  alterations  the  State  legislatures 
might  make.  Now,  the  State  legislatures  have  not, 
under  the  Constitution  of  the  United  States,  any 
power  to  legislate  respecting  the  practice,  pleading, 
and  modes  of  proceeding  of  the  courts  of  the  United 
States.  They  are  entirely  removed  from  their 
authority;  and  it  is  perfectly  clear  that  Congress 
cannot  confer  on  the  legislatures  of  the  States  any 
authority  to  legislate  for  the  United  States  courts. 
There  is  a  case  in  12  Howard,  361, ^  where  that 
sul)ject  came  under  the  consideration  of  the  Supreme 
Court,  and  it  was  held  that  Congress  could  not 
confer  on  a  State  legislature  any  power  to  make 
laws  on  a  subject  which  was  committed  to  Congress 
exclusively ;  and  it  is  committed  to  Congress  to 
make  laws  for  the  practice  of  its  own  courts.  That 
seems  to  me  to  he  a  great  defect  in  this  law.  And 
that,  and  the  practical  difficulty  which  I  have 
pointed  out,  I  should  think,  would  be  likely  to  lead 
to  a  modification  of  it.  The  reason,  I  understand, 
why  it  was  passed,  —  at  least,  the  reason  assigned 
by  the  gentleman  who  had  most  to  do  with  its 
passage,  —  was,  that  the  practice  of  the  courts  of 
the  United  States  was  a  sealed  book  to  all  young- 
men,  —  to  those  who  were  trying  to  enter  the  pro- 
fession, and  to  do  their  duty  in  it.  Well,  as  I 
stated  to  you  at  the  commencement  of  these  Lec- 
tures, that  was  true;  and  so  are  all  other  books 
sealed  until  they  are  opened.  The  only  way  is  to 
open  them,  and  find  out  what  is  in  them.  It  is, 
in  other  words,  an  attempt  to  make  things  easy; 

1   [The  United  States  v.  Reid.] 


PEOCEDURE  AND  PRACTICE.         247 

but  in  making  them  easy,  I  think,  great  confusion 
will  be  likely  to  be  introduced. ^ 

In  reference  to  the  practice  in  equity,  the  Act  of 
August  23,  1842,  found  in  5  Statutes  at  Large,  517, 
authorizes  the  Supreme  Court  to  make  rules  for  the 
practice  in  equity. ^  Under  that  authority,  a  body 
of  rules  has  been  made  by  the  Supreme  Court,  and 
the  practice  of  the  Circuit  Court  is  conducted  in 
conformity  with  those  rules.  And  the  ninetieth 
rule  makes  provision  that,  if  the  preceding  rules 
are  found  insufficient  to  govern  a  particular  case  or 
question  which  arises,  the  •  court  will  follow,  as 
nearly  as  may  be,  the  practice  in  the  High  Court  of 
Chancery  in  England.  So  in  looking  into  these 
rules,  which  are  printed  under  the  authority  of  the 
court,  and  are  to  be  found  in  Mr.  Phillips's  recent 
book  on  the  practice  of  the  Supreme  Court,  **  if  you 

1  The  fifth  section  of  the  Act  of  June  1,  1872,  is  re-enacted  in 
§  914  of  the  Revised  Statutes.  [Tliis  statute  has  been  construed 
strictly.  Thus  it  is  held  that  the  words  "  as  near  as  may  l)e  "  do 
not  mean  "  as  near  as  possible."  Indianapolis,  Sj-c.  R.  R.  Co.  v.  Horst, 
93  U.  S.  291,  301 ;  Osborne  v.  Citi/  of  Detroit,  28  Fed.  Rep.  38.5.  It  is 
held  also  that  mere  usage  in  matters  of  pleading  in  a  State  court, 
which  is  fixed  neither  by  a  State  statute  nor  by  a  rule  of  tlie  court, 
need  not  be  followed  in  the  Federal  Courts.  Osborne  v.  City  nf 
Detroit,  supra.  The  Federal  Courts  will  construe  for  themselves 
State  statutes  in  regard  to  pleading:  tliey  are  not  bound  by  decisions 
relating  to  them  made  by  the  State  Courts.  See  Erstcin  v.  Rothschild, 
22  Fed.  Rep.  61,  64.  Finally,  motions  for  a  new  trial,  and  bills  of 
exceptions  are  not  "  pleadings,"  and  consequently  are  not  included 
by  the  Statute.  Alissonri  Pacific  Rij.  Co.  v.  Chicago  Sf  Alton  R.  R. 
Co.,  132  U.  S.  191.  See,  generally,  Union  Pacijic  Rt/.  Co.  v.  Botsford, 
141  U.  S.  2.50,  256;  Lincoln  v.  Power,  151  U.  S.  436;  Sviale  v 
Mitchell,  143  U.  S.  99.] 

2  §  917  of  the  Revised  Statutes  repeats  the  provisions  of  the  Act 
of  August  23,  1842. 

^  [The  present  rules  will  be  found  in  Foster's  Federal  Practice, 
and  in  Desty's  Federal  Procedure  ] 


248      JUKISDICTION,    PKACTICE,   AND    JURISPEUDENCE. 

should  find  a  case  which  was  not  within  them,  you 
must  resort  to  the  practice  of  the  High  Court  of 
Chancery  in  England  which  you  will  find  exhibited 
in  Mr.  Daniell's  book,  and  in  other  books  on  that 
subject. 

There  are  one  or  two  points  which  I  should  like 
to  call  your  attention  to  before  the  termination  of 
this  Lecture,  which  are  of  a  special  character,  and 
which  do  not  seem  to  fall  under  any  general  head. 
I  think  you  will  agree  with  me  when  I  say  that  this 
whole  subject  is  one  which  cannot  be  reduced  to 
any  scientific,  or  scarcely  to  any  logical  form.  It 
is  special,  and  depends,  so  to  speak,  upon  many 
contingencies  which  grow  out  of  the  peculiar  rela- 
tions of  the  State  governments  and  the  United 
States  government.  It  is  fragmentary  and  irregular 
in  its  character.  I  have  endeavored,  as  well  as  I 
could,  to  reduce  it  to  a  logical  form,  but  there  are 
two  or  three  special  things  which  I  ought  to  men- 
tion before  quitting  this  part  of  the  subject. 

There  is  an  Act  of  March  8,  1865,  found  in  13 
Statutes  at  Large,  501,  §  4,  which  authorizes  the 
judges  to  try  the  facts  in  a  common-law  case  with 
the  consent  of  the  parties ;  and  this  authority  has 
been  found  to  be  of  considerable  importance  in 
practice.  ^ 

The  seventeenth  section  of  the  Judiciary  Act,  1 
Statutes  at  Large,  83,  authorizes  the  Circuit  Courts 
of  the  United  States  to  grant  new  trials  where, 
according   to   the    rules  of  the   common  law,  they 

1  This  provision  is  continued  by  §  649  of  the  Revised  Statutes. 
[Tt  does  not  apply  to  trials  in  the  District  Court.  Wear  v.  Mai/er, 
6  Fe<\.  Kep.  658.] 


PKOCEDURE   AND   PRACTICE.  249 

should  be  granted.  ^  But  I  ought  to  mention  in 
connection  with  that,  that  the  refusal  of  the  Circuit 
Court  to  grant  a  new  trial  is  no  ground  for  a  writ 
of  error;  because  the  application  for  a  new  trial  is 
an  appeal  to  the  discretion  of  the  court.  A  new 
trial  may  be  granted  or  may  be  refused,  not  in 
accordance  with  the  strict  principles  of  law,  but 
because  the  court  finds,  or  is  satisfied,  that  justice 
has  or  has  not  been  done  in  the  case ;  whereas  on  a 
writ  of  error  the  court  can  decide  only  in  conform- 
ity with  strict  principles  of  law.  If  the  record 
shows  they  have  been  administered  in  the  court 
below,  then  the  judgment  is  to  be  affirmed ;  if  they 
have  not  been  administered,  the  judgment  is  to  be 
reversed ;  although  the  court  may  be  of  opinion, 
perhaps,  that  strict  justice  was  done,  or  was  not 
done,  in  a  particular  case.  In  the  one  class  of 
cases  it  is  simply  a  question  of  strict  law ;  into  the 
other  an  element  of  discretion  enters,  and  therefore 
it  is  held  there  is  no  writ  of  error  upon  the  refusal 
of  a  new  trial,  or  for  granting  a  new  trial. 

The  courts  of  the  United  States  have  no  power 
to  grant  a  motion  for  a  nonsuit.  Thev  must  submit 
every  common-law  case  to  a  jury.  But  then  that 
is  rather  a  matter  of  form,  because  they  have  power, 
when  the  plaintiff  has  exhibited  all  his  evidence, 
to  receive  a  motion  to  instruct  the  jury  that  the 
evidence  will  not  warrant  the  jury  in  finding  a 
verdict  in  favor  of  the  plaintiff;  it  being  considered 
by  the  Supreme  Court  to  be  a  question  of  law 
whether  all  the  evidence  exhibited  will  warrant  the 

1  Repeated  in  §  726  of  the  Revised  Statutes.  [See  Ives  v.  Grand 
Trunk  Ry.  Co.,  35  Fed.  Rep.  176.] 


250      JUKISDICTION,   PKACTICE,   AND    JUEISPEUDENCE. 

jury  in  finding  a  verdict  for  the  plaintiff,  and  if  the 
judge  gives  or  refuses  that  instruction,  it  is  ground 
for  a  writ  of  error.  But  then  it  must  be  borne 
in  mind,  that  if  there  is  any  evidence  exhibited 
by  tlie  plaintiff  which  would  or  might,  in  the  judg- 
ment of  the  jury,  tend  to  support  the  claim  of  the 
plaintiff,  —  any  evidence,  no  matter  whether  the 
judge  would  find  that  to  be  sufficient  or  not,  —  he 
must  submit  it  to  the  jury ;  so  that  the  only  case  in 
which  a  judge  can  instruct  a  jury  that  the  evidence 
exhibited  does  not  warrant  them  in  finding  a  ver- 
dict for  the  plaintiff  is  the  same  case  where  he 
would  order  a  nonsuit.  It  is  therefore  merely  a 
different  mode  of  proceeding,  arising  out  of  some 
conception  which  the  early  judges  had,  that  the 
Constitution  having  provided  for  a  trial  by  jury  in 
all  cases  at  common  law,  the  jury  must  somehow 
pass  upon  the  question  under  such  an  instruction 
as  I  have  spoken  of;  and  if  they  find  a  verdict  for 
the  plaintiff  contrary  to  the  instruction,  the  judge 
is  bound  to  set  it  aside,  and  he  has  power  to  set  it 
aside.  If  the  jury  are  found  to  be  contumacious  to 
that  extent,  the  judge  would  take  the  matter  into 
his  own  hands,  and  set  the  verdict  aside,  and  order 
a  new  trial  with  the  expectation  of  finding  a  jury 
that  would  be  reasonable. 

You  will  find  this  subject  discussed,  and  it  is 
worth  your  while  to  look  at  the  case,  in  10  Wallace, 
655.1  1  have  referred  you  there  to  a  dissenting 
opinion,  but  whether  the  dissent  was  right  or  wrong 
is  of  no  consequence.    The  authorities  that  are  there 

1  Merchants'  Bank  v.  State  Bank, 


PROCEDURE   AND    PRACTICE.  251 

cited  upon  this  subject  are  unquestionably  correct. 
If  you  look  at  page  655,  you  will  find  a  collection 
by  the  judge  of  the  authorities  upon  the  question, 
what  is  meant  by  no  evidence  which  would  warrant 
a  verdict,  —  whether  a  mere  scintilla  of  evidence 
would  warrant  a  verdict,  or  whether  it  must  be 
something  that  a  reasonable  man  could  regard  and 
be  governed  by. 

It  often  becomes  a  matter  of  great  importance  to 
stay  an  execution,  as  you  may  readily  suppose.  If 
a  judgment  has  been  obtained  in  a  Circuit  Court  of 
the  United  States,  the  plaintiff  has  a  right  to  an 
execution,  and  to  obtain  his  money  or  his  other 
satisfaction,  whatever  it  may  be;  but  if  it  is  a  case 
where  there  may  be  a  writ  of  error  or  an  appeal, 
then  it  is  reasonable,  and  is  provided  for  by  law, 
that,  on  giving  proper  security,  the  plaintiff  in 
error  or  the  appellant  shall  be  enabled  to  supersede 
that  judgment  temporarily,  until  the  higher  court 
can  pass  upon  the  question,  and  say  whether  it  is 
correct  or  erroneous.  This  subject  is  provided  for 
by  the  twenty-third  section  of  the  Judiciary  Act, 
which  provides  that,  within  ten  days  after  the  judg- 
ment is  rendered,  the  necessary  steps  should  be 
taken  to  supersede  the  execution,  and  the  principal 
step  is  to  give  security  to  prosecute  the  appeal  or 
the  writ  of  error,  and  to  abide  by  the  judgment  of 
the  court  above.  This  time  of  ten  days  was 
enlarged  by  the  Act  of  June  1,  1872,  in  its  eleventh 
section,  to  sixty  days ;  so  that  now  opportunity  is 
given  to  the  defendant  or  plaintiff,  where  there  is 
a  judgment  against  him,  to  stay  the  execution  by 
giving  the  necessary  security,  and  taking  the  other 


252      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

necessary  steps,  at  any  time  within  sixty  days  of 
the  rendition  of  the  judgment.  ^ 

THE   EXISTENCE   OF   STATE  STATUTES,  WHEN 
DISPUTED. 

A  QUESTION  may  arise  in  a  court  of  the  United  States,  and  has 
arisen,  whether  a  State  statute,  pleaded  or  cited  as  a  law  of  the 
State,  actually  exists.  This  is  a  judicial  question,  to  be  determined 
by  the  court,  without  the  intervention  of  a  jury,  although  it  may  in 
form  arise  as  a  question  of  fact.  Tiie  question  of  the  existence  of  a 
statute  is,  like  the  construction  of  an  admitted  statute,  a  question 
of  what  the  law  of  the  State  is  on  a  particular  subject ;  and  the  rule 
which  is  followed  in  the  Supreme  Court  of  the  United  Slates  is  to 
adopt  tlie  decision  of  the  State  court  on  the  existence  of  tlie  statute, 
when  the  State  court  has  passed  upon  it.  Thus,  where  the  Constitu- 
tion of  the  State  of  Illinois  made  it  necessary  to  the  validity  of  a 
statute  that  the  legislative  journals  should  show  that  it  was  passed 
by  a  majority  of  all  the  members  elect  in  each  house  of  the  General 
Assembly,  and  the  Supreme  Court  of  the  State  had  held  that  under 
it  a  sup])Osed  statute  had  never  been  constitutionally  enacted,  the 
Supreme  Court  of  the  United  States  held  in  conformity  with  the 
State  decision.  And  it  was  also  said  that,  if  the  State  court  had  not 
passed  upon  the  validity  of  the  statute,  it  would  have  been  the  duty 
of  a  court  of  the  United  States  to  give  the  same  construction  and 
effect  to  the  Constitution  of  Illinois,  because,  in  the  absence  of  a 
decision  by  the  State  court,  the  Federal  Courts  are  bound  to  take 
judicial  notice  of  the  provisions  of  a  State  constitution.  Town  of 
South  Ottawa  v.  Perkins,  94  U.  S.  260. 

[So  the  decision  of  the  highest  court  of  a  State  as  to  the  legality 
or  illegality  of  an  inferior  State  tribunal  will  be  followed  by  the 
Federal  Courts.  Norton  v.  Shelbij  Count ij,  118  U.  S.  425,  439; 
Meriwether  v.  Muhlenhurg  Count ij  Court,  120  U.  S.  354.] 

1  See  §  1007  of  the  Revised  Statutes.  [See  also  Kitchen  v.  Ran- 
dolph, 93  U.  S.  86.] 


PKOCEDURE   AND   PRACTICE.  253 


CHAPTER   IX. 

PROCEDURE   AND   PRACTICE  {continued). 

In  the  last  Lecture,  gentlemen,  I  brought  before 
you,  for  consideration,  the  rules  of  law  by  which 
the  courts  of  the  United  States  are  governed  in 
exercising  their  jurisdiction  upon  certain  subjects. 
I  now  advance  to  other  subjects  which  it  is  neces- 
sary they  should  find  rules  of  law  to  govern.  And 
the  first  subject  to  which  I  ask  your  attention, 
under  this  head,  is  that  of  evidence.  What  are  the 
rules  of  evidence  which  govern  the  Circuit  Courts 
in  trials  either  at  law,  or  in  equity,  or  admiralty? 
The  original  rule,  so  far  as  regards  trials  at  law, 
was  prescribed  by  that  thirty-fourth  section  of  the 
Judiciary  Act  to  which  I  have  had  occasion  several 
times  to  ask  your  attention,  as  follows  :  — 

"The  laws  of  the  several  States,  except  where 
the  Constitution,  treaties,  or  statutes  of  the  United 
States  shall  otherwise  require  or  provide,  shall  be 
regarded  as  rules  of  decision  in  trials  at  common 
law  in  the  courts  of  the  United  States,  in  cases 
where  they  apply." 

And  it  has  been  held,  although  it  is  not  neces- 
sary for  me  to  refer  you  to  the  decisions,  —  it  has 
been   held   by  the    Supreme    Court  of   the  United 


254      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

States,  as  well  as  repeatedly  on  the  circuits,  that 
this  applied  to,  and  included,  rules  of  evidence,  as 
well  as  other  rules  of  decision ;  so  that,  under  this 
section,  the  laws  of  the  States  concerning  evidence 
were  the  laws  of  the  courts  of  the  United  States.^ 
And  that  remains  true  to  this  time,  except  so  far 
as  those  rules  of  evidence,  prescribed  by  State 
laws,  have  been  modified  by  acts  of  Congress ;  and 
to  those  acts  of  Congress,  or  what  amounts  to  the 
same  thing,  to  the  rules  made  by  the  Supreme 
Court  under  the  authority  of  acts  of  Congress,  I 
will  now  ask  your  attention. 

The  first  question  which  arose  was,  whether  these 
State  laws  apply  in  equity  and  admiralty,  as  well 
as  in  trials  at  common  law.  And  it  was  held  they 
did  not ;  and  therefore  the  English  rules  of  evidence 
in  equity,  and  the  rules  in  admiralty  which  are 
derived  either  from  England  or  from  a  wider  survey 
of  admiralty  law,  were  those  which  were  practised 
on  in  equity  and  admiralty  in  the  courts  of  the 
United  States  down  to  the  time  when  Congress 
passed  an  act  found  in  12  Statutes  at  Large,  588. 
It  is  a  short  act,  and  I  will  read  it.  The  date  of  it 
(and  perhaps  it  would  be  well  for  you  to  observe  the 
date)  is  the  16th  of  July,  1862. 

"  The  laws  of  the  State  in  which  the  court  shall 
be  held  shall  be  the  rules  of  decision  as  to  the  com- 
petency of  witnesses  in  the  courts  of  the  United 
States,  in  trials  at  common  law  [it  was  so  before 
at  common  law],   in  equity,   and  admiralty." 

So  that,  by  this  statute,  the  same  rules  were  to 

1  Connecticut  Mutual  Life  Insurance  Co.  v.  Union  Trust  Co.,  112 
U.  S.  250. 


PROCEDURE   AND   PRACTICE.  255 

be  applied  in  equity  and  admiralty  as  at  the  com- 
mon law,  so  far  as  regarded  the  competency  of 
witnesses. 

But  Congress  apparently  was  not  satisfied  to  have 
the  laws  of  the  State,  as  to  the  competency  of  wit- 
nesses, continue  to  be  applied  ;  and  therefore,  in  13 
Statutes  at  Large,  351,  §  3,  they  passed  another 
act  which,  curiously  enough,  you  will  find  is  a 
clause  in  an  appropriation  bill,  and  it  has  no  con- 
nection whatever  with  what  goes  before  or  what 
comes  after.  It  is  a  proviso  to  a  section  in  an  ap- 
propriation bill,  in  regard  to  the  appropriation  of  the 
sum  of  one  hundred  thousand  dollars  for  the  trial 
and  punishment  of  persons  engaged  in  counterfeit- 
ing treasury  notes ;  '''■Provided^  That,  in  the  courts 
of  the  United  States,  there  shall  be  no  exclusion  of 
any  witness  on  account  of  color,  nor  in  civil  actions 
because  he  is  a  party  to,  or  interested  in,  the  issue 
tried." 

That  swept  away,  absolutely  and  entirely,  all 
objections  to  witnesses,  either  because  they  had  an 
interest  in  the  subject,  an  interest  in  the  question 
to  be  tried,  or  because  they  were  parties  to  the  suit. 
That  was  very  hasty  legislation,  undoubtedly,  as 
you  might  infer  from  the  place  where  you  find  it; 
and  Congress  was  obliged,  afterwards,  to  modify 
it,  which  they  did  in  the  same  book,  13  Statutes  at 
Large,  533 :  — 

"That  the  third  section  of  an  act,  entitled  '  An 
act  making  appropriations  for  sundry  civil  expenses 
of  the  government,'  etc.,  be,  and  the  same  hereby 
is,  amended  by  adding  thereto  the  following  pro- 
viso:  Provided^    further,    That   in   actions    by    or 


256      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

against  executors,  administrators,  or  guardians,  in 
which  judgment  may  be  rendered  for  or  against 
them,  neither  party  shall  be  allowed  to  testify 
against  the  other  as  to  any  transaction  with,  or 
statement  by,  the  testator,  intestate,  or  ward,  unless 
called  to  testify  thereto  by  the  opposite  party,  or 
required  to  testify  thereto  by  the  court." 

This  was  intended  to  protect  those  who  were  in 
interest  behind  executors,  administrators,  or  guar- 
dians from  testimony  given  by  surviving  parties 
when  the  real  opposing  party  was  deceased,  or 
when  he  was  so  removed  from  the  controversy  that 
he  could  not  be  expected  to  testify  as  a  witness. 
And,  therefore,  it  makes  this  very  proper  pro- 
vision: "That  neither  party  shall  be  allowed  to 
testify  against  the  other  as  to  any  transaction  with, 
or  statement  by,  the  testator,  intestate,  or  ward, 
unless  called  to  do  so  by  the  opposite  party  or 
required  to  do  so  by  the  court. "  Precisely  what  is 
meant  by  being  "required  to  do  so  by  the  court," 
it  is  difficult  to  see.  There  was  a  case^  in  this 
Circuit  before  Mr.  Justice  Clifford  and  Judge 
Lowell,  some  years  ago,  of  very  great  interest  and 
magnitude,  in  which  they  held,  that  they  would  not 
make  an  order  to  examine  a  plaintiff  in  equity 
respecting  any  transactions  with  a  deceased  person, 
except  in  conformity  to  the  laws  of  the  State,  — 
that  they  would  follow  these.  And  in  that  case 
they  excluded  the  evidence ;  and  that  exclusion  was 
fatal  to  the  plaintiff's  claim,  because  she  had  no 
evidence,  except  her  own,  as  to  the  material  point 

1  [Robinson  v.  ISlandell,  3  Cliff.  169.     See  also  Eslava  v.  Mazange, 
1  Woods,  623;  Mitnnn  v.  Owens,  2  Dill.  475.] 


PROCEDURE   AND    PRACTICE.  257 

involved  in  the  case,  which  depended  upon  her  con- 
versations and  agreements  with  her  deceased  aunt. 
Whether  that  decision  will  be  followed  —  whether 
the  analogy  between  the  State  laws  and  the  orders 
which  the  court  may  make  in  its  discretion,  if  it 
has  discretionary  authority  —  is  a  subject  on  which 
I  have  no  opinion. 

Now,  that  is  the  present  state  of  the  law  as  to 
the  competency  of  witnesses.  Parties  in  civil  cases 
are  competent  in  the  courts  of  the  United  States,  as 
witnesses,  to  every  subject  and  on  every  topic  in 
which  they  could  be  witnesses  if  they  were  disin- 
terested, except  conversations  and  transactions  with 
a  deceased  person,  or  with  a  ward  who  is  repre- 
sented by  a  guardian.  1 

The  fifth  section  of  the  present  Practice  Act, 
which  I  have  so  frequently  referred  to,  although  it 
adopts  the  laws  of  the  State  as  to  practice,  plead- 
ings, and  forms  and  modes  of  proceeding,  in  other 
than  equity  and  admiralty  causes,  in  the  Circuit  and 
District  Courts  of  the  United  States,  has  a  proviso, 
"  That  nothing  herein  contained  shall  alter  the  rules 
of  evidence,  under  the  laws  of  the  United  States, 
and  as  practised  in  the  courts  thereof. "  So  that  these 
acts  of  Congress,  to  which  I  have  referred  you,  give 
the  present  law  as  to  the  competency  of  witnesses.^ 

1  See  §  858  of  the  Revised  Statutes,  in  which  the  statutes  above 
cited  have  been  cousolidated.  [For  the  construction  of  this  section, 
see  Life  Insurance  Co.  v.  Schaefer,  94  U.  S.  457  ;  Connecticut  Mutual 
Life  Insurance.  Co.  v.  ZJyiion  Trust  Co.,  112  IT.  S.  255;  Texas  v. 
Chiles,  21  Wall.  488;  Dravo  v.  Fabel,  25  Fed.  Rep.  116;  Witters  v. 
Scmles,  28  Fed.  Rep.  218.] 

2  Section  5  of  the  Practice  Act  of  1872  is  re-enacted  in  §  914  of 
the  Revised  Statutes,  with  tiie  omission  of  the  proviso. 

17 


253      JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

It  is  material  to  observe  what  means  are  provided 
by  Congress  to  compel  witnesses  to  testify.  In 
the  Act  of  March  2,  1793,  found  in  1  Statutes  at 
Large,  335,  it  is  provided :  — 

"Subpoenas  for  witnesses,  who  may  be  required 
to  attend  a  court  of  the  United  States  in  any  dis- 
trict thereof,  may  run  into  any  other  district ;  pro- 
vided, that,  in  civil  causes  [it  is  limited,  you 
perceive,  to  civil  causes,  —  in  criminal  causes  it 
may  run  anywhere],  the  witnesses  living  out  of  the 
district  in  which  the  court  is  holden  do  not  live  at 
a  greater  distance  than  one  hundred  miles  from 
the  place  of  holding  the  same."^ 

So  that  subpoenas  are  issued  by  the  clerks  of  the 
Circuit  and  District  Courts  to  compel  witnesses  to 
attend  from  any  part  of  the  district  in  which  the 
court  is  held,  and  from  any  other  district,  provided 
the  witness  is  not  required  to  travel  more  than  one 
hundred  miles.  ^ 

In  other  respects  than  those  which  I  have  noticed, 
you  may  consider  that  the  laws  of  the  State  in  respect 
to  evidence  govern  in  courts  of  the  United  States. 
There  are  some  small  differences  in  their  practice, 
—  so  small  that  it  is  hardly  worth  while  to  notice 
them. 

There  is  one,  however,  of  considerable  impor- 
tance. Generally,  in  the  practice  of  the  State 
courts,  it  is  admissible  to  cross-examine  a  witness 

1  [Revised  Statutes,  §  876.] 

2  [A  witness  who  resides  more  than  100  miles  from  the  place  of 
trial,  although  within  the  district  in  which  the  court  sits,  cannot  be 
brought  in  hy  subpoena.  Henry  v.  Ricketts,  1  Cranch  C.  C.  580.  As 
to  the  manner  in  which  the  distance  is  determined,  see  Ex  parte 
Beebees,  2  Wall.  Jr.  127  ;  United  States  v.  Raiston,  17  Fed.  Rep.  895.] 


PROCEDURE   AND    PRACTICE.  259 

on  any  subject  which  is  pertinent  to  the  issue, 
whether  he  was  examined  in  chief  on  that  topic  or 
not;  but  it  was  settled  a  great  while  ago,  by  the 
Supreme  Court,  that  the  strict  English  practice 
in  respect  to  cross-examination  prevailed  in  the 
Federal  Courts;  that  a  witness  could  be  cross- 
examined  only  upon  subjects  on  which  he  was 
examined  in  chief,  and  if  the  opposite  party  desired 
to  examine  him  on  other  independent  topics,  al- 
though relevant  to  the  issue  on  trial,  he  must  call 
him  as  his  witness  and  examine  him  in  chief ;  and 
that  has  been  the  practice,  so  far  as  my  personal 
knowledge  extends,  in  all  the  courts  of  the  United 
States.  Whether  this  recent  act,  which  provided 
that  the  practice,  pleadings,  forms,  and  modes  of 
proceeding  shall  conform  to  the  laws  of  the  States, 
would  reach  that,  perhaps  may  be  doubtful ;  but 
my  own  impression  is  that  it  does  not,  because  the 
proviso  is,  "That  nothing  herein  contained  shall 
alter  the  rules  of  evidence  under  the  laws  of  the 
United  States,"  and  I  take  the  mode  of  cross- 
examination  of  a  witness  to  be  one  of  the  rules  of 
evidence,  so  that,  I  suppose,  it  still  remains  true 
that,  in  the  courts  of  the  United  States,  you  cannot 
cross-examine  a  witness  on  any  topic  upon  which 
he  was  not  examined  in  chief.  ^ 

The  next  inquiry  is.  What  is  the  mode  of  proof 
in  equity  and  admiralty  ?  The  orginal  provision, 
found  in  the  thirtieth  section  of  the  Judiciary 
Act,  1  Statutes  at  Large,  88,   is,   "That  the  mode 

1  [This  is  not  now  the  law.  The  practice  of  the  particular  State 
is  followed  in  this  matter,  as  in  all  others.  Spies  v.  Illinois,  123  U.  S. 
131,  180.] 


260      JURISDICTION,    PEACTICE,   AND    JUEISPRUDENCE. 

of  proof  by  oral  testimony  and  examination  of  wit- 
nesses in  open  court  shall  be  the  same  in  all  the 
courts  of  the  United  States,  as  well  in  the  trial  of 
causes  in  equity  and  of  admiralty  and  maritime 
jurisdiction,   as  of  actions  at  common  law." 

But  in  1842  Congress  passed  an  act,  which  is 
found  in  5  Statutes  at  Large,  518,  which  authorizes 
the  Supreme  Court  of  the  United  States  to  make 
rules  concerning  evidence  in  the  courts  of  the 
United  States.  It  is  a  very  broad  power,  not 
limited  at  all.  It  confers  upon  the  Supreme  Court 
of  the  United  States  unlimited  jursidiction  over 
the  subject  of  rules  of  evidence,  among  other  things, 
in  the  courts  of  the  United  States.  And  from  time 
to  time,  since  that,  the  court  has  made  rules  on  the 
subject  of  the  mode  of  proof.  It  is  not  necessary 
to  ask  your  attention  to  any  of  the  early  rules 
which  are  superseded ;  but  one  was  made  at  the 
December  term,  1861,  which  you  will  find  pub- 
lished among  the  rules  of  practice  of  the  courts  of 
equity  in  the  United  States,  in  which  this  whole 
subject  is  covered ;  and  although  this  thirtieth 
section  of  the  Judiciary  Act  had  said  that  the  mode 
of  proof  in  all  the  courts  should  be  the  same,  and 
that  witnesses  should  be  produced  and  examined  in 
court,  under  this  rule,  in  equity  and  admiralty 
cases  the  witnesses  are  to  be  produced  before  an 
examiner,  and  examined  and  cross-examined,  so 
that  their  evidence  goes  upon  the  record ;  and  in 
cases  of  appeal  from  the  District  Court  in  Admiralty 
to  the  Circuit  Court,  ^  and  thence  to  the  Supreme 

1  [The  reader  will  remember  that  the  appellate  power  of  the  Cir- 
cuit Court  is  now  lodged  elsewhere.] 


PEOCEDURE   AND    PRACTICE.  261 

Court,  in  case  of  an  appeal  from  the  Circuit  Court 
to  the  Supreme  Court,  or  in  a  case  in  equity,  tlie 
evidence  all  goes  up  as  part  of  the  record ;  and  the 
questions  of  fact  as  much  as  the  questions  of  law- 
are  reconsidered  by  the  appellate  court.  It  is  not 
necessary  for  me  to  read  this  rule.  It  covers  the 
whole  subject,  —  provides  for  compelling  the  attend- 
ance of  witnesses,  for  the  mode  of  their  examina- 
tion, and  for  the  manner  in  which  the  testimony, 
when  obtained,  shall  be  brought  on  to  the  record 
for  the  consideration  of  the  court.  Some  difference 
of  opinion  has  existed,  from  time  to  time,  upon  the 
subject  of  the  power  of  the  court  to  make  a  rule  as 
broad  as  this,  but  I  think  it  is  quite  safe  to  assume 
that  their  action,  in  that  particular,  will  not  be 
disturbed.^ 

There  is  one  provision  in  this  thirtieth  section 
which  is  still  occasionally  practised  upon,  and 
wdiich  is  not  repealed,  as  I  understand  it,  by  the 
rule  of  which  I  have  been  speaking.  It  is  that 
provision  by  which  a  party  on  a  trial  in  a  District 
Coiirt,  in  an  admiralty  case,  suggests  to  the  judge 
that  a  particular  witness,  or  more  than  one,  if  the 
fact  be  so,  is  about  to  go  out  of  the  country,  or  out 
of  the  jurisdiction  of  the  court,  or  for  some  cause 
or  other  may  not  be  present ;  so  that,  if  the  case 
should  be  appealed,  he  cannot  appear  and  testify ; 
and  thereupon  the  judge  is  authorized  to  appoint 
somebody,  the   clerk   being   the  proper  person,  to 

1  As  the  law  now  stands,  the  power  of  the  Snpreme  Court  to  fix 
by  rules  the  mode  of  proof  in  equity  and  admiralty  cases  is  confirmed 
by  §  862  of  the  Revised  Statutes,  excepting  as  provided  in  the  sec- 
tions following.     See  §§  863  et  seq. 


2G2      JURISDICTION,    PRACTICE,    AND    JURISPRUDENCE. 

take  down  his  evidence ;  and  that  evidence  has  the 
same  effect  in  the  appellate  court  as  if  it  was  given 
by  deposition  out  of  court.  It  has  become  of  com- 
paratively little  consequence  since  this  rule  was 
made ;  but  I  can  remember  when  it  was  not  an 
infrequent  practice  to  have  testimony  taken  in  that 
way.  ^ 

Of  course,  the  laws  of  the  United  States  upon 
the  subject  of  evidence  would  be  very  incomplete, 
if  provision  were  not  made  for  taking  depositions 
as  well  in  trials  at  law  as  in  equity  and  admiralty. 

The  provisions  which  have  been  made  in  equity 
and  admiralty  I  have  already  adverted  to;  but  there 
are  two  kinds  of  depositions  which  may  be  taken 
and  used  in  trials  at  law.  The  first  is  under  this 
thirtieth  section  of  the  Judiciary  Act,  and  I  will 
read  enough  of  it  to  bring  before  you  the  idea  which 
I  wish  to  convey. 

"When  the  testimony  of  any  person  shall  be 
necessary  in  any  civil  cause  depending  in  any  dis- 
trict in  any  court  of  the  United  States,  who  shall 
live  at  a  greater  distance  from  the  place  of  trial 
than  one  hundred  miles,  or  is  bound  on  a  voyage  to 
sea,  or  is  about  to  go  out  of  the  United  States,  or 
out  of  such  district,  and  to  a  greater  distance  from 
the  place  of  trial  than  as  aforesaid,  before  the  time 
of  trial,  or  is  ancient  or  very  infirm,  the  deposition 
of  such  person  may  be  taken  de  bene  esse,"  in  the 

1  See  Eevised  Statutes,  §  863.  [Depositions  may  be  taken  by  a 
United  States  Commissionor,  Notary  Public,  Clerk  of  tbe  Circuit  or 
District  Court,  or  Judge  of  a  County  Court ;  or,  according  to  a  rule 
of  the  court,  by  any  person  whom  the  court  appoints  as  "  special  ex- 
aminer," for  the  particular  case.] 


PROCEDURE  AND  PRACTICE.  26 


Q 


manner  pointed  out;  that  is,  it  may  be  taken  for 
the  occasion,  and  if  the  supposed  cause  of  his  ina- 
bility to  attend  should  continue  until  the  day  of  the 
trial,  then  his  deposition  may  be  read.  But  it  is 
only  conditionally  taken;  and  if  the  cause  which 
led  to  its  taking  is  removed  before  the  time  of  the 
trial,  then  the  witness,  and  not  the  deposition, 
must  be  produced.  ^ 

On  the  other  hand,  there  is  recognized  in  the 
section,  at  the  close  of  it,  —  though  there  is  no 
express  authority  conferred,  —  there  is  recognized 
an  authority  in  the  courts  of  the  United  States  to 
grant  what  is  here  called  a  dedimus  potestatem, 
which  we  commonly,  at  the  present  day,  call  a 
commission  to  take  evidence.  And  it  is  said  here, 
that  nothing  herein  contained  "  shall  be  construed 
to  prevent  any  court  from  granting  a  dedimus  potes- 
tatem to  take  depositions  according  to  common 
usage,  when  it  may  be  necessary  to  prevent  a 
failure  or  delay  of  justice.  "^ 

Now  the  Supreme  Court  has  decided,  in  the  case 
of  Sargent  v.  Biddle,  4  Wheaton,  508,  that  these 
two  classes  of  depositions  —  those  taken  de  bene 
esse  under  the  thirtieth  section,  and  those  taken 
under  a  commission — are  wholly  distinct;  and 
though  it  is  necessary  that  the  cause  which  induced 
the  taking  of  the  deposition  de  bene  esse  must  con- 
tinue down  to  the  time  of  the  trial,  and  be  then 
existing,  otherwise  the  witness  must  be  produced, 
that  is  not  true  of  depositions  taken  under  a  com- 

1  See  §§  863-865  of  the  Eevised  Statutes. 

2  Power  to  grant  a  dedimus  potestatem,  or  commi.<sion  to  take  tes- 
timony, is  now  expressly  given  by  §  866  of  the  Revised  Statutes. 


264      JUKISDICTION,    PEACTICE,   AND   JURISPRUDENCE. 

mission.  They  are  considered  to  be  absolute 
instead  of  de  bene  esse,  and  when  once  taken  they 
are  returned  into  court  and  opened  there,  according 
to  the  rules  of  the  court ;  and  the  party  that  takes 
them  may  rely  upon  his  right  to  use  them.  In  this 
thirtieth  section  there  is  a  provision  requiring 
notice,  in  certain  cases,  to  the  opposite  party,  of 
the  taking  of  the  deposition,  so  that  he  may  attend 
and  cross-examine  the  witness;  but  it  was  only  in 
certain  cases,  and  notice  was  dispensed  with  in  a 
large  class  of  cases.  This  has  always  been  consid- 
ered, I  believe,  by  judges  and  practitioners,  to  be  a 
defect  in  the  law,  because  ex  parte  evidence  is  of 
very  little  value.  And,  accordingly,  Congress,  in 
1872,  May  9th,  passed  an  act  which  is  found  in  17 
Statutes  at  Large,  89,  by  which  they  prohibited  any 
deposition  from  being  taken  without  notice  to  the 
opposite  party,  except  under  very  special  circum- 
stances. They  require  everything  to  be  done  which 
can  practically  be  done  to  give  notice.  That  is  an 
important  modification  of  this  thirtieth  section  of 
the  Judiciary  Act  as  it  had  existed  for  so  many 
years.  ^ 

In  reference  to  the  mode  of  proceeding  in  taking 
depositions,  in  certifying  them,  and  in  returning 
and  opening  them  in  court,  there  have  been  great 
numbers  of  decisions.  It  would  not  be  practicable, 
Avithin  the  limits  which  I  must  prescribe  to  myself, 
to  ask  your  attention  to  those  decisions.  You  will 
readily  be  able  to  recur  to  them.  They  are  found 
in  any  good  digest  down  to  the  time  when  that 
digest   was    made.      And,    in   practice,    when    any 

^  As  to  notice,  see  §  863  of  the  Revised  Statutes. 


PEOCEDURE   AND   PRACTICE.  265 

question  arises  in  your  mind  as  to  whether  a  deposi- 
tion which  has  been  taken  is  or  is  not  admissible 
in  evidence,  it  would  be  necessary  to  look  into  this 
thirtieth  section  and  see  what  its  requirements  are, 
and  then  to  louk  into  the  decisions  which  have  been 
made  under  the  different  parts  of  it,  and  see 
whether  those  requirements  have  been  complied 
with.  1 

There  is  another  authority  which  the  Circuit 
Courts  have,  in  trials  at  law,  to  compel  discovery, 
which  is  somewhat  unlike  the  modes  of  proceeding 
in  other  courts  of  common  law.  It  is  found  in  the 
fifteenth  section  of  the  Judiciary  Act,  1  Statutes  at 
Large,  82 :  "  That  all  the  said  courts  of  the  United 
States  shall  have  power  in  the  trial  of  actions  at 
law,  on  motion  and  due  notice  thereof  being  given, 
to  require  the  parties  to  produce  books  or  writings 
in  their  possession  or  power,  which  contain  evi- 
dence pertinent  to  the  issue,  in  cases  and  under 
circumstances  where  they  might  be  compelled  to 
produce  the  same  by  the  ordinary  rules  of  proceed- 
ing in  chancery. "  ^ 

It  confers  on  the  courts  of  the  United  States  the 
power  to  compel  discovery  in  a  suit  at  law ;  and 
that  has  been  found,  in  practice,  of  very  consider- 
able utility.  One  evidence  of  it  is  the  number  of 
decisions  that  have  been  made  defining  the  limits 

1  Consult  Revised  Statutes,  §§  863-865.  [See  also  Notes  on  the 
Revised  Statutes  by  Gould  &  Tucker,  and  1  Foster's  Federal  Practice, 
pp.  502  et  secj.] 

2  See  §  724  of  the  Revised  Statutes.  [See  Merchnnfs'  Bank  v. 
State  Bnnk.SCWa.  201;  Loirenstein  v.  Carei/,  12  Fed.  Eep.  811; 
Brewster  v.  Tuthill  Spring  Co.,  34  Fed.  Rep.  769.] 


266      JURISDICTION,    PRACTICE,    AND    JURISPRUDENCE. 

of  this  power,  and  the  circumstances  under  which 
it  should  be  exerted.  And  if  you  will  turn  to 
Abbott's  National  Digest,  Vol.  II.  p.  161,  you  will 
find,  as  I  know  from  personal  examination,  all  the 
decisions  under  this  section  of  the  act.  I  think  he 
calls  the  present  digest,  of  which  he  has  published 
two  volumes,  the  "National  Digest,"  and  the  other 
is  called  the  "  Digest  of  the  Decisions  of  the  Courts 
of  the  United  States,"  in  four  volumes.  I  presume 
it  is  in  your  library  here. 

Before  leaving  the  subject  of  the  Circuit  Courts, 
I  ought  to  say  something  in  regard  to  their  criminal 
procedure. 

It  is  very  remarkable,  certainly,  that,  down  to 
the  year  1865,  there  was  no  act  of  Congress  regu- 
lating the  subject  of  grand  juries,  or  their  forma- 
tion, or  in  any  way  regulating  them  in  the  courts 
of  the  United  States.  On  the  3d  of  March,  1865, 
found  in  13  Statutes  at  Large,  500,  §  1,  grand 
juries  in  the  courts  of  the  United  States  were 
regulated.  And  in  §  2  the  subject  of  challenges  to 
the  traverse  jurors  was  also  regulated.  And  it  was 
there  provided  that  in  capital  cases  the  accused 
should  have  the  right  to  use  twenty  challenges,  and 
the  United  States  five ;  that,  in  cases  other  than 
capital,  the  accused  should  have  the  right  to  use 
ten  challenges,  and  the  United  States  two.  But 
this  was  amended  by  the  act  passed  on  the  8th  of 
June,  1872,  found  in  17  Statutes  at  Large,  282, 
§  2 ;  and  this  provided  that,  in  cases  of  treason  and 
murder,  the  challenges  should  be  as  before,  that  is, 
twenty  for  the  accused,  and  five  for  the  United 
States;  and   in  felonies,  ten  for  the  accused,  and 


PKOCEDURE   AND   PRACTICE.  267 

three  for  the  United  States ;  and  in  all  other  cases 
under  the  degree  of  felony,  three  for  each  party. 

That  is  the  present  law.  In  cases  of  treason  or 
murder,  twenty  and  five.  In  felony,  ten  and  three. 
In  trials  under  the  degree  of  felony,  each  party, 
the  United  States  and  the  accused,  three.  ^ 

There  is  another  provision  of  an  Act  of  Congress 
of  some  practical  importance ;  and  that  is,  that 
crimes  begun  in  one  district  and  completed  in 
another  may  be  tried  in  either. ^ 

This  was  enacted  in  14  Statutes  at  Large,  484, 
§  30,  and  probably  grew  out  of  some  public  want 
arisino-  out  of  the  administration  of  the  internal 
revenue  laws,  and  perhaps,  more  especially,  the 
laws  in  regard  to  distilleries.  But  still  it  was  a 
very  proper  provision  of  law,  and  one  which  I  had 
myself  once  seen  occasion  to  regret  the  absence  of. 

The  subject  of  criminal  pleadings  is  touched 
upon  in  a  very  important  way  by  this  recent  Act  of 
June  1,  1872,  in  §§  8,  9,  and  10 :  — 

"That  no  indictment  found  and  presented  by  a 
grand  jury  in  any  District,  or  Circuit,  or  other 
court  of  the  United  States,  shall  be  deemed  insufh- 

1  Eevised  Statutes,  §§  800-822.  [The  defendaut  in  a  capital  case 
is  entitled  to  receive,  at  least  two  days  before  the  trial,  a  copy  of  the 
indictment  and  a  list  of  the  witnesses  to  be  produced  against  him. 
Eev.  Stat.,  Sec.  1033.  See  Logan  v.  United  States,  144  U.  S.  263, 
304.] 

2  Revised  Statutes,  §  731.  [A  crime  committed  by  means  of  a 
letter  sent  by  post,  such  as  a  letter  proposing  an  illegal  contract  or 
making  false  representations,  is  usually  held  to  be  committed  in  the 
district  in  which  the  letter  is  received.  See  In  re  Palliser,  136  U.  S. 
2.57,  where  the  cases  are  discussed.  In  case  of  a  libel  sent  by  post, 
the  crime  is  committed  only  in  the  district  where  the  libel  is  received. 
Re  Buell,  3  Dillon,  1 1 6, 1 23 .] 


2G8      JUEISDICTION,   PEACTICE,   AND   JURISPRUDENCE. 

cient,  nor  shall  a  trial,  judgment,  or  other  proceed- 
ing thereon,  be  affected  by  reason  of  any  defect  or 
imperfection  in  matter  of  form  onl}',  which  shall 
not  tend  to  the  prejudice  of  the  defendant."  ^ 

I  am  unable  to  tell  you  what  that  means,  — 
"  matter  of  form  only,  which  shall  not  tend  to  the 
prejudice  of  the  defendant. "  It  remains  to  be  seen 
what  kind  of  defects  those  are.  A  defect  known  to 
the  common  law,  recognized  as  such,  and  yet  a 
"  matter  of  form  only,  which  does  not  tend  to  the 
prejudice  of  the  defendant."  I  call  your  attention 
to  it  to  say  to  you,  if  this  law  should  not  be  repealed, 
if  you  have  occasion  to  take  exceptions  to  an  indict- 
ment, you  will  then  be  called  upon  to  consider  what 
it  does  mean.  2 

Section  9  is:  — 

"That  in  all  criminal  cases  the  defendant  may 
be  found  guilty  of  any  offence,  the  commission  of 
which  is  necessarily  included  in  that  with  which 
he  is  charged  in  the  indictment,  or  may  be  found 
guilty  of  an  attempt  to  commit  the  offence  so 
charged,  provided  that  such  attempt  is  by  itself  a 
separate  offence. "  ^ 

The  first  part  of  this  provision  is  a  rule  of 
criminal  pleading  which  has  obtained  in  many  of 

1  [Revised  Statutes,  §  1025.] 

2  [This  law,  as  Judge  Curtis  anticipated,  has  given  rise  to  much 
litigation.  In  the  following  cases  the  indictment  was  sustained : 
United  States  v.  Jackson,  2  Fed.  Rep.  502  ;  United  States  v.  Borne- 
mam,  35  Fed.  Rep.  824  ;  United  States  v.  Simmons,  96  U.  S.  36.  In 
the  following  cases  the  indictment  was  held  to  be  defective  :  United 
States  V.  Morrissei/,  32  Fed.  Rep.  147  ;  United  States  v.  Shnher,  32  Fed. 
Rep.  691  ;  United  States  v.  Davis,  6  Fed.  Rep.  682  ;  l^foore  v.  United 
States,  IfiO  U.  S.  268  ;  Markhnm  v.  United  States,  160  U.  S.  319.] 

8  [Revised  Statutes,  §  1035.] 


PEOCEDUEE   AND    PEACTICE.  269 

the  States ;  and  I  know  of  no  objection  to  it.  He 
"  may  be  found  guilty  of  any  offence,  the  commis- 
sion of  which  is  necessarily  included  in  that  with 
which  he  is  charged  in  the  indictment,  or  he  may 
be  found  guilty  of  an  attempt  to  commit  the  offence 
so  charged."  1  do  not  see  any  objection  to  that,  if 
it  is  known  beforehand,  as  matter  of  law,  that  the 
charge  that  he  did  the  thing  is  also  a  charge  that 
he  attempted  to  do  it.  He  seems  to  have  sufficient 
notice,  and  I  see  no  objection  to  it  if  it  is  a  sepa- 
rate offence,  as  this  section  provides. 

"  If  the  jury  cannot  agree  upon  a  verdict  as  to 
all,  they  may  render  a  verdict  as  to  those  in  regard 
to  whom  they  do  agree,  on  which  a  judgment  shall 
be  entered  accordingly;  and  the  cause,  as  to  the 
other  defendants,  may  be  tried  by  another  jury. "  i 

This,  also,  is  a  rule  which  has  obtained  very 
generally,  and  I  can  see  no  objection  to  it. 

It  was  early  settled  that  the  section  of  the  Judi- 
ciary Act  which  makes  the  laws  of  the  several 
States  the  rules  of  decision  in  trials  at  common 
law,  applied  only  to  civil  actions,  and  not  to  crimi- 
nal trials ;  and  the  question  arose  in  the  case  of 
The  ZTnited  States  v.  Reid.  reported  in  12  Howard, 
361,  what  was  the  law  of  evidence  in  criminal  cases, 
and  it  was  held,  by  the  Supreme  Court,  that  it  was 
that  law  of  the  State  which  existed  at  the  time 
when  the  Constitution  was  adopted  in  1789 ;  that 
subsequent  modifications  of  the  State  law  had  not 
affected  the  rules  of  decision  in  the  courts  of  the 

^  Revised  Statutes,  §  1036.  [And  so  also  they  may  find  some  guilty, 
and  disa2:ree  as  to  others.  Bucklin  v.  United  States,  (No.  2.)  159 
U.  S.  682.] 


270      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

United  States  in  criminal  cases.    Now  this  decision, 
so  far  as  it  goes,  is  satisfactory  and  sufficient ;  but 
it  applies  only  to  those  thirteen  States  which  came 
into  the  Union  at  the  time  of  the  formation  of  the 
Constitution,  —  or,  in   truth,  to  but  eleven,  which 
came  in  when  the  Constitution  went  into  operation, 
though  they  have  usually  been  called  the  thirteen 
States.     It  does  not  apply  to  any  that  have  come  in 
since ;  and  I  am  unable  to  tell  you  what  the  rules 
of  evidence  in  criminal  trials  are,   other  than  the 
rules  of  the  State  where  the  trial  is  had,  and  within 
whose  limits  the  trial  is  had.     Certainly  it  is  so  in 
all  the  original  States,  and  although  there  has  been 
no  decision  going  beyond  that,  some  of  the  consid- 
erations which  led  to  that  decision  in  the  case  of 
The  United  States  v.  Reid  would  be  applicable  even 
to  States  admitted  into  the  Union  since  that  trial ; 
and  I  should  suppose  the  safer  rule  would   be  to 
consider  that,   in  criminal  trials,  you  are  to  look 
to  the  laws  of  the  State,  except  so  far  as  you  find 
they   have    been    modified    in   any  way  by  acts   of 
Congress,  —  which,  in  reference  to  criminal  trials, 
they  have  not,  except  by  that  provision  that  a  wit- 
ness should  not  be  excluded  on  account  of  color. i 

You  are  aware  that,  in  States  where  slavery 
existed,  a  man  of  color,  whether  he  was  a  slave  or 
freeman,  was  not  competent  to  testify  against  a 
white  man.  That  is  abolished  by  the  provision 
which  I  read  to  you,  that  in  all  trials  that  should 
be  no  objection.  That  applies  to  criminal  trials  as 
well  as  to  others. 

The  next  topic   to  which   I  ask  your  attention, 

1  See  Revised  Statutes,  §  722. 


PROCEDURE  AND  PRACTICE.         271 

and  which  I  hope  to  be  able  to  finish  this  afternoon, 
is   the  concurrent  jurisdiction  of  the  State  courts 
and   the   United    States    courts.     Here   are    these 
different   courts,  held   within   the  same  territory, 
administering,  to   a  very   great   extent,  the   same 
system   of   laws,  and    it  is  a  very  interesting  and 
important   inquiry  how   far   they  have    concurrent 
jurisdiction.     In  the  first  place,  you  may  take  it,  I 
think,  as  clear,  that  it  is  not  enough  to  exclude  the 
concurrent  jurisdiction  of   State  courts  that  cases 
come  under  the  judicial  power  of  the  United  States. 
The   Constitution   has   conferred   on   the   national 
judiciary  jurisdiction  over  certain  classes  of  cases 
dependent,  first,  on   the  character  of  the  parties, 
and,  second,  on  the  subject-matter  involved  in  the 
suit.     Now,  the  mere  fact  that  the  Constitution  has 
conferred    this    jurisdiction    over    these   different 
classes  of  cases  on  the  courts  of  the  United  States, 
is  not  enough  to  exclude  the  State  courts.     There 
must  be  something  more  than  that.     In  other  words, 
it  is  not  enough  to  show  that  a  court  of  the  United 
States  has  jurisdiction  to  defeat  the  jurisdiction  of 
the  proper  State  court.     You  must  go  further,  and 
inquire  whether  either  the  Constitution   itself,   in 
the  terms  in  which  it  has  conveyed  the  jurisdiction 
to  a  particular  court,  or  whether  Congress,  acting 
under   the    Constitution,    has   excluded   the    State 
courts  from  the  exercise  of  judicial  power  over  a 
class  of  cases. 

Now,  I  propose  to  ask  your  attention,  in  the  first 
place,  to  what  the  Constitution  has  done  in  regard 
to  excluding  the  jurisdiction  of  State  courts.  In 
the  third  article,  in  the  passage  which  I  have 
several  times  read  to  you,  occurs  this  language :  — 


272      JURISDICTION,   PBACTICE,   AND   JUEISPRUDENCE. 

"  In  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  and  those  in  which  a  State 
shall  be  a  party,  the  Supreme  Court  shall  have 
original  jurisdiction." 

"In  all  cases."     Well,   according  to  the  literal 
meaning  of   that    language,   if   they  have    original 
jurisdiction  in  all  cases  affecting  public  ministers 
and  consuls,  or  those  in  which  a  State  shall  be  a 
party,  no  other  court  can  have  any  original  juris- 
diction,  because,   if   any  other  court   had   original 
jurisdiction,    then    the    Supreme   Court  would   not 
have    original    jurisdiction    in  all  cases;  and    this 
has  given  rise  to  very  much  doubt,  which  is  not  at 
this  time  settled.^     Perhaps  the  best  mode  I  can 
adopt  to  bring  before  you  the  present  state  of  the 
law  is  to  read  a  short  passage  from  Kent's  Com- 
mentaries, VoL   I.   p.  815 :  "  The  Judiciary  Act  of 
1789  seems  to  have  considered  it  to  be  competent 
for  Congress  to  vest  concurrent  jurisdiction  in  those 
specified  cases  in  other  courts;  for  it  gave  a  con- 
current jurisdiction,  in  some  of  those  cases,  to  the 
Circuit  Courts.     In  the  case  of  The   United  States 
V.  Bavara  (2  Dallas,   297),  this  point  arose  in  the 
Circuit  Court  for  Pennsylvania  District,  and  it  was 
held  that  Congress  could  vest  a  concurrent  juris- 
diction   in  other   courts  of  those   very  cases   over 
which  the  Supreme  Court  had  original  jurisdiction, 
and  that  the  word  'original'  was  not  to  be  taken 
to  imply  exclusive  cognizance  of  the  cases  enumer- 
ated.    But  the  opinion  of  the  Supreme  Court  of  the 
United  States  in  Marhury  v.   Madison  (1  Cranch, 

1  [It  has  now  beeu  held  that  the  expression  "  all  cases  "  does  not 
make  the  jurisdictiou  exclusive.     Clajlin  v.  Houseman,  93  U.  S.  130.] 


PROCEDURE   AND   PRACTICE.  273 

137),  goes  far  towards  establishing  the  principle  of 
exclusive  jurisdiction  in  the  Supreme  Court  in  all 
those  cases  of  original  jurisdiction.  This  last  case 
was  considered  in  Pennsylvania  v.  Kosloff  (5  S.  & 
R.  545)  as  shaking  the  decision  in  the  case  of 
Ravara;  and  yet  the  question  was  still  left  in  doubt 
by  the  Supreme  Court,  in  the  case  of  The  United 
States  V.  Ortega  (11  Wheat.  167),  and  the  decision 
upon  it  was  purposely  waived. " 

I  desire  also  to  refer  you  to  the  decision  of  Mr. 
Justice  Nelson  in  the  case  of  Graham  v.  Stucken,  4 
Blatchford,  50,  and  to  some  remarks  of  Mr.  G.  T. 
Curtis  in  1  Curtis's  Commentaries,  §§  108,  109. 
I  think  it  should  be  said  that  this  is  an  unsettled 
question,  as  it  was  left  by  the  Supreme  Court  of  the 
United  States  in  The  United  States  v.  Ortega. 
Whether  Congress  can  constitutionally  do  what  it 
has  attempted  to  do,  —  confer  some  part  of  the 
jurisdiction  which  by  the  Constitution  it  was  said 
the  Supreme  Court  of  the  United  States  should 
have  in  all  cases,  —  is,  I  think,  an  unsettled  ques- 
tion. My  own  opinion  about  it  is,  that  the  reason- 
ing of  the  court  in  Marhury  \. Madison  would  show 
they  cannot;  but  that  is  certainly  a  subject  of 
doubt.  ^ 

The  particular  section  is  the  thirteenth  of  the 
Judiciary  Act,  which  says:  "The  Supreme  Court 
shall  have  exclusive  jurisdiction  of  all  controversies 
of  a  civil  nature,  where  a  State  is  a  party,  except 
between  a  State  and  its  citizens;  and  except  also 
between  a  State  and  citizens  of  other  States,   or 

1  [The  Supreme  Court  have  since  decided  that  Congress  has  this 
power.     See  p.  9,  supra. '\ 

18 


274      JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

aliens,  in  which  latter  case  it  shall  have  original, 
but  not  exclusive  jurisdiction." 

Then  it  goes  on  to  the  other  part  of  the  subject, 
about  ambassadors,  etc.,  and  confers  a  portion  of 
the  jurisdiction  upon  inferior  courts,  —  Circuit  and 
District  Courts.  The  eleventh  section  of  this  act 
respects  the  jurisdiction  of  the  Circuit  Court,  and 
expressly  makes  the  jurisdiction  of  the  State  courts 
so  far  as  Congress  could,  concurrent  with  that  of 
the  Circuit  Courts :  — 

"  Circuit  Courts  shall  have  original  cognizance, 
concurrent  with  the  courts  of  the  several  States,  of 
all  suits  of  a  civil  nature  at  common  law  or  in 
equity." 

The  ninth  section  respects  the  jurisdiction  of 
the  District  Court,  and  gives  that  court,  exclusive 
of  the  jurisdiction  of  the  State  courts,  the  power  to 
entertain  suits  concerning  consuls  and  vice-consuls. 
You  will  hnd  a  decision  in  Davis  v.  Packard,  1 
Peters,  281,  where  the  Supreme  Court  of  the  United 
States  decided  that  a  State  Court  could  not  enter- 
tain a  suit  against  a  vice-consul.^  They  have  also 
decided,  in  Grelston  v.  Hoyt,  3  Wheaton,  246,  that  a 
State  court  cannot  entertain  jurisdiction  over  a 
question  of  forfeiture  under  a  law  of  the  United 
States.  They  have  also  decided,  in  the  case  of  The 
Belfast,  7  Wallace,  624,  that  the  State  cannot  enter- 
tain jurisdiction,  even  though  expressly  authorized 
by  State  statute,  over  maritime  liens,  —  liens 
created  by  the  maritime  law;  but  that  the  entire 

1  [Rev.  Stat.  §  711,  clause  8,  which  made  this  jurisdiction  exclu- 
sive of  the  State  courts,  was  repealed  by  Act  of  February  18,  1875 
(18  St.  318).] 


PROCEDURE   AND   PRACTICE.  275 

subject  of  maritime  liens  belongs  to  the  District 
Courts  of  the  United  States.  ^  They  have  settled, 
however,  that,  although  a  mariner  has  a  lien  upon 
a  vessel  for  his  wages,  and  if  he  pursues  that 
remedy  by  means  of  the  lien,  he  must  go  into  the 
District  Court,  nevertheless,  the  courts  of  the  sev- 
eral States  have  jurisdiction  in  actions  at  com- 
mon law  for  the  recovery  of  mariners'  wages.  So 
that  the  distinction  is  between  a  suit  founded  on 
a  contract,  whether  for  mariners'  wages  or  any- 
thing else,  where  the  State  courts  have  jurisdiction, 
and  a  suit  founded  upon  a  maritime  lien,  where, 
as  the  Supreme  Court  holds,  they  have  no  jurisdic- 
tion. That  is  pointed  out  in  Leon  v.  Galceran,  11 
Wallace,  185. 

They  have  also  said  that,  although  the  States 
cannot  by  their  statutes  create  maritime  liens,  nor 
give  the  courts  of  the  States  jurisdiction  to  enforce 
such  liens,  they  may  create  liens  which  will  attach 
upon  a  vessel.  There  is  no  maritime  lien,  no  lien 
created  by  the  maritime  law,  upon  a  vessel  for  sup- 
plies or  repairs  in  a  home  port ;  but  if  the  legislature 
of  a  State  chooses  to  create  such  a  lien,  —  and  they 
almost  universally  have,  I  think,  —  that  is  within 
their  competency,  and  they  may  also  give  jurisdic- 
tion to  these  courts  to  enforce  those  liens,  but  they 
are  not  maritime  liens.  They  are  no  more  maritime 
liens  than  liens  upon  houses  or  warehouses  in  favor 
of  the  builder  or  contractor.^ 

1  [See  Stewart  v.  Potomac  Ferry  Co.,  12  Fed.  Rep.  296] 

2  For  the  cases  in  which  the  jurisdiction  of  the  Federal  courts  is 
expressly  made  exclusive  of  that  of  the  State  courts,  see  Revised 
Statutes,  §  711. 


276       JURISDICTION,    PRACTICE,    AND    JURISPRUDENCE. 

It  has  also  been  held  from  an  early  day,  and  ever 
since,  that  a  State  court  cannot  issue  a  writ  of 
mandamus  to  an  officer  of  the  United  States.  This 
was  decided  originally  in  the  case  of  McClung  v. 
Silliman,  6  Wheaton,  598.  Nor  can  a  State  court 
issue  a  writ  of  replevin  to  take  property  out  of  the 
hands  of  a  marshal,  which  he  holds  either  by  virtue 
of  an  attachment  or  in  any  other  official  way,  as 
was  held  in  Freeman  v.  Eowe,  24  Howard,  450. 
Nor  can  a  State  court  issue  a  writ  of  habeas  corpus 
to  take  a  prisoner  either  out  of  the  custody  of  a 
marshal,  or  out  of  the  custody  even  of  a  State  officer 
in  a  prison  of  the  State,  if  he  is  there  under  the 
sentence  of  a  court  of  the  United  States,  as  was 
held  in  Ahleman  v.  Booth,  21  Howard,  506. i  Nor 
can  a  State  court  enjoin  a  judgment  of  a  court  of 
the  United  States.  McKim  v.  Voorhies,  7  Cranch, 
279,  and  Duncan  v.  Barst,  1  Howard,  301.2  ^q^ 
can  a  State  court  of  insolvency  discharge  a  judg- 
ment of  a  court  of  the  United  States,  as  was  decided 
in  the  case  I  last  referred  to. 

The  question  has  often  arisen,  and  been  decided 
differently  in  different  States,  whether  a  court  of  a 
State  had  jurisdiction  to  try  the  question  of  the 
validity  of  a  patent  or  copyright.  I  believe  it  has 
been  agreed  on  all  hands  that  they  have  no  juris- 
diction to  try  such  a  case  when  directly  presented. 
The  real  question  has  been  whether  they  could  try 
that  subject-matter  when  collaterally  presented. 
If  a  patentee  should  In-ing  an  action  in  a  State 
court  against  an  infringer,  founded  upon  his  patent, 

1  [Tarble's  case,  13  Wall.  397.] 

2  [See  City  Bank  of  New  York  v.  SkeltOTi,  2  Blatchf.  14.] 


PROCEDURE   AND    PRACTICE.  277 

and  seeking  for  damages,  it  is  generally  agreed,  I 
believe  universally,  that  a  State  court  cannot  enter- 
tain such  a  suit.  The  reason  is  because,  by  the 
fifty-fifth  section  of  the  patent  act,  found  in  16 
Statutes  at  Large,  206,  it  is  provided  that,  in  all 
suits  at  law  or  in  equity  founded  upon  patents,  the 
Circuit  Courts  of  the  United  States  shall  have 
cognizance;  and  in  the  hundred  and  sixth  section 
the  same  provision  is  made  in  regard  to  copyrights.^ 
That  is  found  in  16  Statutes  at  Large,  215.  But  it 
will  readily  occur  to  you  that  a  great  many  cases 
which  go  into  the  State  courts  may  be  more  or  less 
connected  with  this  subject,  —  the  sale  of  patent 
rights,  for  instance.  An  interest  under  a  patent 
is  sold,  and  a  promissory  note  is  taken,  and  an 
action  is  brought  upon  the  note,  and  the  defendant 
says  the  patent  was  invalid,  and  the  consideration 
of  the  note  failed.  That  presents  directly,  in  one 
sense,  the  question  of  the  validity  of  the  patent,  but 
it  arises  only  collaterally.  The  suit  is  not  brought 
for  any  such  purpose.  I  think  the  better  opinion 
is,  in  such  cases,  that  the  State  courts  have  juris- 
diction. If  you  look  at  the  case  of  Nash  v.  Lull, 
102  Mass.  60,  you  will  find  that  Mr.  Justice  Gray 
has  there  collected  the  authorities,  pro  and  con,  on 
this  subject;  and  1  think  the  weight  of  authority, 
as  well  as  of  reason,  is  very  decidedly  that  the 
courts  of  the  several  States  have  jurisdiction  to  try 
the  question  of  the  validity  of  a  patent  or  copyright 
when  it  arises  collaterall}'.^ 

1  [See  §  711  of  the  Eevised  Statutes.] 

2  [See  also  Rice  v.  Garnhart,  34  Wis.  45-3  ;  The  Continental  Store 
S'=ri-ire  Co.  v.  Clarl-,  100  X.  Y.  3G5  ;  Sl^mwcr's  Appeal,  58  Pa.  St.  155  ; 
Williams  V.  Stai-  Sand  Co.,  35  Fed.  Rep.  369,  aud  note.] 


278      JUKISDICTION,    PEACTICE,   AND    JURISPItULEXCE. 

Congress  has  also  legislated  on  the  somewhat 
analogous  subject  of  trade-marks,  as  will  be  found 
if  you  refer  to  16  Statutes  at  Large,  212;  and  in 
the  eighty-third  section  Congress  has  expressly 
declared  that  the  fact  that  Congress  has  legislated 
on  this  subject  shall  not  deprive  any  party  of  any 
remedy  in  any  court ;  so  he  may  go  into  a  court  of 
a  State  to  obtain  a  remedy  for  the  violation  of  his 
right  to  his  trade-mark,  notwithstanding  that  act, 
and  just  as  well  as  he  could  if  the  act  had  never 
been  passed.  ^ 

1  have  now  finished  what  I  have  to  say  upon  the 
subject  of  the  Circuit  Courts,  and  the  concurrent 
jurisdiction  of  the  State  courts. 

1  It  has  been  recently  held  by  the  Supreme  Court,  that  the  trade- 
mark laws  of  the  United  States,  as  embodied  in  §§  4937  to  4947  of 
the  Eevised  Statutes,  are  invalid  for  want  of  constitutional  power  to 
enact  them ;  that,  if  Congress  can  legislate  at  all  for  the  protection 
of  trade-marks,  the  legislation  must  be  limited  to  their  use  in  "  com- 
merce with  foreign  nations,  and  among  the  several  States,  and  with 
the  Indian  tribes ; "  and  that  the  present  legislation  is  not  so  limited. 
But  this  leaves  untouched  the  treaty-making  power  over  trade-marks 
and  the  duty  of  Congress  to  pass  laws  to  carry  such  treaties  iuto 
effect.      Trade-Mark  Cases,  100  U.  S.  82. 


THE   DISTEICT   COURTS.  279 


CHAPTER  X. 

THE  DISTRICT   COURTS. 

When  the  Judiciary  Act  was  adopted,  on  the  24th 
of  September,  1789,  it  established  thirteen  dis- 
tricts. There  were  then  but  eleven  States,  Rhode 
Island  and  North  Carolina  not  then  having  expressed 
their  assent  to  the  Constitution;  but  what  was 
known  as  the  District  of  Maine,  then  a  part  of  the 
State  of  Massachusetts,  and  the  District  of  Ken- 
tucky, then  a  part  of  the  State  of  Virginia,  were 
erected  into  separate  districts,  making,  in  the 
whole,  thirteen  in  number.  Now,  there  are  fifty- 
eight  ^  districts,  in  each  of  which  a  District  Court 
exists,  constituted  and  acting  as  J  shall  describe 
hereafter. 

Jurisdiction.  —  Five  principal  divisions  of  juris- 
diction :  — 

1.  Admiralty. 2 

2.  Suits  of  the  United  States  or  its  officers  in 
matters  concerning  the  collection  of  the  revenue, 
and  other  subjects. 

1  [The  present  number  is  sixty-nine.] 

2  See  Eevised  Statutes,  §  563,  subdivision  8. 


280      JUKISDICTION,    PRACTICE,  AND   JURISPRUDENCE. 

3.  Some  miscellaneous  cases,  in  which  jurisdic- 
tion has  been  given  by  special  statutes. 

4.  Bankruptcy. 

5.  Crimes. 

[The  present  jurisdiction  may  be  stated  in  more 
detail  as  follows :  ^ 

(1)  All  crimes  cognizable  under  the  authority  of 
the  United  States,  committed  within  some  District, 
or  upon  the  high  seas,  the  punishment  of  which  is 
not  capital.  2 

1  [Some  less  important  cases  are  omitted.  For  a  list  of  them,  see 
Desty's  Federal  Procedure,  §  49,  or  Foster's  Federal  Practice,  page 
57.] 

2  [Of  capital  crimes  the  Circuit  Court  alone  has  jurisdiction. 
The  criminal  jurisdiction  of  the  Federal  courts  is  defined  wholly  by 
acts  of  Congress.  These  courts  have  no  common-law  criminal  juris- 
diction, and  there  is  no  such  thing  as  a  common-law  crime  against  the 
United  States.  No  act  is  a  crime  against  the  United  States  until 
Congress  has  made  it  such  and  affixed  a  penalty  to  it.  Jones  v. 
United  States,  137  U.  S.  202,  211.] 

[The  Federal  courts  have  only  a  restricted  criminal  jurisdiction 
withiu  State  limits.  In  most  cases,  crimes,  such  as  murder  and  lar- 
ceny, are  made  cognizable  by  the  United  States  courts  only  when  they 
are  committed  on  the  high  seas,  or  in  some  place,  such  as  an  arsenal, 
within  the  exclusive  jurisdiction  of  the  United  States.  In  case  of  a 
murder,  for  example,  committed  within  Boston  harbor,  the  courts 
of  Massachusetts  alone  would  have  jurisdiction.  And  this  would  be 
true  although  the  murder  was  done  on  a  foreign  ship,  and  both  the 
murderer  and  his  victim  were  aliens.  A  foreign  merchant  vessel, 
while  within  State  limits,  is  subject  to  the  laws  of  the  State,  and 
is  within  the  jurisdiction  of  its  courts.  But  this  is  not  true  of  ships 
of  war ;  a  ship-of-war  carries  its  own  nationality  with  it,  as  if  it  were 
a  part  of  the  soil  of  the  country  to  which  it  belongs.  Every  lawyer 
ought  to  understand  these  elementary  rules  of  international  law,  so 
that  he  may  do  his  share  in  guiding  puldic  opinion  aright  when  an 
occasion  arises  for  applying  them.  Thus  in  the  Barrundia  case 
which  occurred  a  few  years  ago,  a  South  American,  a  fugitive,  was 
taken  by  tlie  local  authorities  from  an  American  merchant  ship, 
while  she  lay  in  a  port  of  the  country  to  which  the  man  belonged. 


THE   DISTRICT   COURTS.  231 

(2)  Suits  for  penalties  and  forfeitures  incurred 
under  the  laws  of  the  United  States,  ^  including  the 
contract  labor  law.^ 

(3)  Suits  at  common  law  brought  by  the  United 
States    or    by   any   officer    thereof    authorized    to 

sue.^ 

(4)  Causes  of   action   arising  under  the   postal 

laws. 

(5)  Suits  in  equity  brought  by  the  United  States 
to  enforce  the  lien  of  the  United  States  upon  real 
estate  for  any  internal  revenue  tax,  or  to  subject  to 
the  payment  of  any  such  tax  any  real  estate  owned 
by  the  delinquent. 

(6)  Suits  against  the  United  States  to  collect, 
in  certain  cases,  claims  not  exceeding  $1000  in 
amount* 


This  act  caused  a  great  hue  and  cry  in  this  country,  but  it  was  a 
perfectly  legal  proceeding.  If  the  ship  had  been  an  American  man- 
of-war,  the  local  authorities  would  have  had  no  right  to  take  the 
man,  —  nor  would  they,  if  the  merchant  ship  had  been  upon  the 
hiffh  seas.  This  last  case,  it  will  be  remembered,  was  that  of 
the  Trent,  from  which,  in  mid-ocean,  an  American  naval  captain 
took  the  Southern  Commissioners,  Mason  and  Slidell] 

1  [United  States  v.  Whitcomb  Metallic  Bedstead  Co.,  45  Fed.  Eep. 
89.  The  Circuit  Court  has  jurisdiction  of  suits  for  penalties  or  for- 
feitures only  when  such  jurisdiction  is  expressly  conferred  by  the 
act  imposing  the  penalty  or  forfeiture.  United  States  v.  Mooneij,  116 
U.  S.  104.] 

^  [In  respect  to  this  law  (2.3  Stat.  332),  the  jurisdiction  is  concur- 
rent with  the  Circuit  Court.  See  United  States  v.  Church  of  the  Holy 
Trinitfi,  36  Fed.  Rep.  303.  | 

8  [Rouse  V.  Hornsb)/,  161  IT.  S.  588.  Under  this  clause,  receivers 
appointed  by  United  States  Courts  may  bring  suit.  But  as  to  re- 
ceivers of  National  Banks,  see  Thompson  v.  Pool,  70  Fed.  Rep.  725; 
Stephens  v.  Bernays.  41  Fed.  Rep.  401  ;  44  Fed.  Rep.  642.] 

*  [24  Stat.  505.     See  United  States  v.  Jones,  131  U.  S.  l.J 


282      JUKISDICTION,   PKACTICE,   AND   JUKISPRUDENCE. 

(7)  Suits  under  the  Civil  Rights  and  Elective 
Franchise  laws.^ 

(8)  Suits  brought  by  an  alien  for  a  tort  which 
violated  the  law  of  nations. ^ 

(9)  Suits  against  consuls  and  vice-consuls.^ 

(10)  All  civil  causes  of  admiralty  and  maritime 
jurisdiction  "saving  to  suitors  in  all  cases  the 
right  of  a  common-law  remedy,  where  the  common 
law  is  competent  to  give  it,  and  of  all  seizures  on 
land  and  on  waters  not  within  the  admiralty  and 
maritime  jurisdiction,"  and  of  proceedings  to  con- 
demn property  taken  as  prize.* 

The  Bankruptcy  Act,  of  which  the  District  Court 
had  jurisdiction,  was  repealed  June  7,  1878.^ 

The  jurisdiction  of  the  District  Court  is  concur- 
rent with  that  of  the  Circuit  Court  in  respect  to 
(1)  crimes;  (3)  suits  by  the  United  States  or  an 
officer  thereof  ;  (4)  cases  arising  under  the  postal 
laws;  (6)  certain  claims  against  the  United  States; 
and  (7)  suits  under  the  Civil  Rights  and  Elective 
Franchise  Statutes.  In  respect  to  (9)  suits  against 
consuls  and  vice-consuls,  the  District  Court  has 
concurrent  jurisdiction  with  the  Supreme  Court. 
In  the  remaining  classes  of  cases  the  jurisdiction 
of  the  District  Court  is  exclusive.] 

1.  Admiralty.  — No  other  subject  of  jurisdiction 
has  been  so  elaborately  and  ably  discussed  as  that 
of  the  admiralty  jurisdiction  conferred  by  the  Con- 
stitution. Two  principal  causes  have  produced  this 
discussion:  First,  the  policy  of  the   common   law 

1  [Revised  Statutes,  §  563.]  2  [Rev.  Stat.  §  563.1 

3  [Rev.  Stat.  §  563.]  *  [Rev.  Stat.  §  563.] 

6  [20  U.  S.  Stat.  99.] 


THE   DISTRICT   COURTS.  283 

courts  in  England,  and  the  expression  of  it  by  Lord 
Coke,  enforced  as  it  was  by  those  courts  through 
writs  of  prohibition.  The  earliest  consequence  of 
this  is  seen  in  the  thirteenth  section  of  the  Judi- 
ciary Act,  which  empowered  the  Supreme  Court  to 
issue  writs  of  prohibition  to  the  District  Courts, 
when  proceeding  as  courts  of  admiralty  and  mari- 
time jurisdiction.  1  Second,  it  involved  a  question 
of  political  power  between  the  States  and  the  United 
States;  because  CTerything  granted  to  the  admiralty 
is  so  much  added  to  the  judicial  power  of  the 
United  States,  and  taken  from  the  power  of  the 
States. 

The  discussion  of  this  important  subject  was 
really  begun  by  Mr.  Justice  Story,  in  De  Lovio  v. 
Boit,  2  Gallison,  398,  in  which  he  exhausted  all  the 
learning  then  at  the  command  of  any  lawyer  in  the 
United  States  to  maintain  the  true  scope  and 
intent  of  the  admiralty  jurisdiction,  and  place  it 
on  the  same  ground,  and  give  it  the  same  breadth, 
that  belonged  to  it  under  the  general  maritime  law 
of  other  civilized  nations.  ^ 


1  [Rev.  Stat.  §  688.     In  re  Morrison,  147  U.  S  14.] 

2  [From  about  the  year  1200  to  1400,  the  Admiralty  Court  of 
England  —  so  called  because  its  first  judges  were  admirals  —  grew  in 
power,  and  encroached  upon  the  common-law  courts.  Then  came  a 
reaction,  wliich  lasted  into  the  pre.sent  century.  The  common-law 
courts  regained  their  own  ground  and  in  turn  encroached  upon  the 
Admiralty  Court.  Coke,  Chief  Justice  of  the  King's  Bench,  was 
especially  hostile  to  the  admiralty  jurisdiction.  In  the  early  part  of 
this  century,  when  the  Admiralty  Court  in  England  was  almost  at  its 
lowest  ebb,  our  Federal  judges  were  obliged  to  decide  what  was  meant 
by  those  words  in  the  Constitution  which  extended  their  authority  to 
"all  cases  of  admiralty  and  maritime  jurisdiction."  Did  they  mean 
only  that  limited  jurisdiction  which  was  then  exercised  in  England, 


284      JUEISDICTION,   PKACTICE,   AND   JURISPRUDENCE. 

The  discussion  was  continued  by  Judge  Ware,  in 
some  of  the  ablest  legal  dissertations  in  our  lan- 
guage, and  renewed  by  Mr.  Justice  Story  in  the 
cases  reported  in  3  Mason,  27, ^  and  2  Story's 
Reports,  176.2  These  discussions  related  both  to 
the  subject-matter  of  contracts  over  which  the 
admiralty  jurisdiction  extended,  and  the  localities 
within  which  acts  must  be  done,  in  order  that  those 
courts  should  have  jurisdiction. 

In  the  mean  time,  several  cases  came  before  the 
Supreme  Court  of  the  United  States,  in  which  was 
developed  strong  hostility  against  this  jurisdic- 
tion by  some  judges,  and,  for  the  time  being,  the 
decisions  ended  by  restraining  it  to  the  ebb  and 
flow  of  the  tide  as  to  locality,  and,  as  will  be  seen 
hereafter,  in  somewhat  narrowing  it  as  to  contracts. 
This  judicial  history,  so  far  as  respects  locality, 
is  stated  with  great  clearness  by  Mr.  Justice  Miller 
in  TJie  Hine  v.  Trevor,  4  Wallace,  555.  But  after 
this  came  the  case  of  The  Eagle,  in  8  Wallace,  15, 
which  finally  swept  away  everything  contained  in 
the  Act  of  1845,  mentioned  by  Mr.  Justice  Miller, 

or  did  the  Constitution  mean  to  confer  the  full  admiralty  jurisdiction 
as  it  was  known  to  the  civilized  world  ?  Judge  Story  took  the  latter 
view,  and  he  laid  much  stress  upon  the  use  of  the  word  "  maritime" 
in  the  Constitution,  holding  that  it  was  intended  to  define  and  amplify 
the  word  "admiralty."  Fortunately,  Judge  Story's  liberal  view  of 
the  Constitution  in  this  respect  was,  as  Judge  Curtis  states,  finally 
adopted  by  the  Supreme  Court ;  and  it  is  significant  tliat,  during  the 
])ast  fifty  years,  the  English  admiralty  jurisdiction  has  been  enlarged 
hy  various  Acts  of  Tarliament,  so  that  it  is  now  nearly  on  a  par  with 
that  exercised  hy  our  Federal  courts.  This  whole  subject  is  well 
stated  in  Benedict's  Admiralty  Practice.] 

1  Peele  v.  Merchants'  Insnranre  Co. 

2  Hale  V.  Washington  Insurance  Co, 


THE   DISTRICT   COURTS.  285 

except  that  trial  by  jury  in  certain  cases  is  pre- 
served.^ The  local  jurisdiction  of  the  admiralty 
was  thus  vindicated,  and  was  found  to  extend,  not 
merely  to  the  high  seas,  and  the  ebb  and  flow  of 
the  tide,  but  to  all  the  navigable  waters  of  the 
United  States,  including  the  great  lakes  and  rivers.  ^ 
It  is  not  necessary  to  trace  historically,  in  this 
connection,  the  progress  made  by  the  Supreme 
Court  as  to  contracts,  but  it  will  be  perceived  when 
I  come  to  speak  of  them.^ 

1  [This  Act  of  1845  extended  the  admiralty  jurisdiction,  in  cases 
of  contract  and  of  tort,  over  the  great  lakes,  but  the  decision  in  The 
Genesee  Chief,  12  How.  443,  followed  by  the  case  of  The  Eagle, 
rendered  the  statute  superfluous.  The  provision  in  regard  to  trials 
by  jury  is  liowever  preserved  in  Rev.  Stat.  §  566.  See  The  City  of 
Toledo,  73  Fed.  Rep.  220.] 

2  [As  to  when  damages  caused  by  ships  to  piers  and  other  objects 
upon  land  are  within  the  admiralty  jurisdiction,  see  Charleston 
Bridge  Co.  v.  The  John  C.  Sweeney,  55  Fed.  Rep.  540,  where  all  the 
cases  are  reviewed.  See  also  Hermann  v.  Port  Blakeley  Mill  Co.,  69 
Fed.  Rep.  646,  where  a  new  question  arose,  —  a  man  working  in  the 
hold  of  a  vessel  having  been  injured  by  a  piece  of  timber  sent  down 
without  warning  by  a  fellow- workman  on  the  wharf.  J 

^  The  merely  internal  waters  of  a  State,  although  navigated  by 
its  own  vessels,  are  not  within  the  admiralty  jurisdiction.  The 
waters  which  are  now  subject  to  the  jurisdiction  are  those  public 
navigable  waters  where  commerce  is  carried  on  between  different 
States,  or  with  a  foreign  nation.  [The  Supreme  Court,  however, 
have  construed  the  admiralty  jurisdiction  in  this  respect  very  liberally. 
In  one  case  they  stated  the  rule  as  follows ;  "  They  constitute  navi- 
gable waters  of  the  United  States,  within  the  meaning  of  the  Acts  of 
Congress,  in  contradistinction  from  the  navigable  waters  of  the  States, 
when  they  form  in  their  ordinary  condition,  by  themselves  or  by 
uniting  with  other  waters,  a  continued  [continuous  ?]  highway,  over 
which  commerce  is  or  may  be  carried  on  with  other  States  or  foreign 
countries  in  the  customary  modes  in  wliich  such  commerce  is  con- 
ducted by  water."  The  Daniel  Ball,  10  Wall.  557.  In  a  later  case, 
the  court  held  that  a  cause  of  action  arising  from  a  collision  between 
two  ships  on  a  canal,  within  the  limits  of  a  single  State,  both  ships 


286      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

The  civil  admiralty  jurisdiction  is  of  two  parts  : 
First,  instance  causes ;  second,  prize  causes.  What 
are  instance  causes  over  which  the  District  Courts, 
as  courts  of  admiralty,  have  jurisdiction  ?  They 
fall  under  two  general  heads;  first,  contract; 
second,  tort.  The  first,  contract,  depends  on  the 
subject-matter;  it  must  be  a  contract  of  a  maritime 
nature.  The  second,  tort,  depends  on  the  locality 
of  the  facts  out  of  which  the  cause  of  action  arises. 

Much  difference  of  opinion  has  existed  at  dif- 
ferent times  concerning  the  subject  of  maritime 
contracts,  —  what  are  maritime  contracts  within 
the  jurisdiction  of  the  admiralty.  But  gradually 
principles  have  been  evolved,  and  they  have  been 
applied  to  so  many  details,  that  at  present  there  is 
not  much  difficulty  in  answering  the  question  as 
to  any  important  class  of  contracts,  whether  they 
are  maritime,  and  come  under  the  jurisdiction  of 
the  admiralty  or  do  not.  I  will  state  in  detail  what 
contracts  have  been  decided  to  be  of  admiralty 
cognizance.^ 

being  owned  by  citizens  of  that  State,  was  within  the  admiralty  juris- 
diction, because  the  canal  was  in  the  line  of  commerce  between  Lake 
Michigan  and  the  Mississippi  River  Ex  parte  Boyer,  109  U.  S.  629. 
See  also  Miller  v.  New  York,  109  IT.  S.  385, 395.  In  a  Massachusetts 
case  (Rome  v.  The  Granite  Bridge  Co.,  21  Pick.  344)  Chief  Justice 
Shaw  said  that  it  is  not  "  every  small  creek  in  which  a  fishing  skiff 
or  gunning  canoe  can  be  made  to  float  at  high  water  wliich  is  deemed 
navigable.  But  in  order  to  have  this  character,  it  must  be  navigable 
to  some  purpose,  useful  to  trade  or  agriculture."  But  such  use  may 
be  very  slight.  See  The  Montello,  20  Wall.  430.  In  Commonwealth 
v.  King  (150  Mass.  221),  the  court  took  judicial  notice  of  the  fact 
that  the  Connecticut  Kivcr,  above  S])riiigfield,  Massachusetts,  is  not 
navigable,  except  for  purposes  of  State  commerce  ] 

1  I  As  to  the  maritime  character  of  a  stevedore's  service  see  The 
Wivanhoe,  26  Fed.  Rep.  927 ;  llie  Main,  51  Fed.  Rep.  954.] 


THE   DISTRICT   COUIITS.  287 

First,  contracts  of  affreightment.  The  case  of 
The  New  Jersey  Steam  Navigation  Company  v.  The 
Merchants'  Bank,  6  Howard,  344,  raised  this  general 
question  which  was  twice  elaborately  argued,  and 
the  decision  of  the  court  was  that  a  contract  to 
carry  merchandise  on  the  navigable  waters  of  the 
United  States  was  within  the  jurisdiction  of  the 
admiralty.  This  case  was  followed  by  31oreivood 
V.  Enequist,  23  Howard,  491,  and  The  Belfast,  1 
Wallace,  624,  and  it  is  now  completely  settled  that 
the  mutual  obligations  of  the  shipper  and  the  ship- 
owner, in  respect  to  merchandise  to  be  carried  on 
the  navigable  waters  of  the  United  States,  are 
entirely  within  the  jurisdiction  of  the  admiralty, 
whether  these  obligations  result  in  claims  made  by 
the  shipper  for  breach  of  contract  on  the  part  of 
the  ship-owner,  or  obligations  resulting  in  claims 
of  the  ship-owner  against  the  owner  of  the  mer- 
chandise ;  and  also,  that  the  form  of  contract  is  not 
material.  It  may  be  a  bill  of  lading  or  a  charter- 
party,  or  simply  by  parol.  The  one  thing  requisite 
is,  that  the  merchandise  should  be  placed  on  board 
to  be  carried,  and  received  for  that  purpose,  and 
out  of  these  two  facts  spring  the  relations  of  the 
parties,  and  their  legal  rights,^ 

It  would  seem  to  be  a  necessary  inference  from 
this  law,  and  it  is  now  settled,  that  similar  rights 
and  obligations   cognizable   by  the  admiralty  are 


1  [This  should  not  he  understood  as  excludins^  executory  contracts 
of  affreightment,  which  are  also  within  the  admiralty  jurisdiction, 
although  it  is  doubtful  whether  suits  upon  tliem  can  be  brought  in 
rem:  Oakes  v.  Richardson,  2  Lowell's  Dec.  173;  Scott  v.  The  Ira 
Chaffee,  2  Fed.  Rep.  401,  405 ;  The  Monte  A.,  12  Fed.  Rep.  331,  336.] 


288      JUEISDICTION,   PEACTICE,  AND   JUEISPRUDENCE. 

applicable  to  passengers  as  well  as  merchandise.^ 
This  was  decided  in  the  case  of  The  Moses  Taylor, 
4  Wallace,  411. 

Another  subject  within  the  undoubted  jurisdic- 
tion of  the  admiralty  is  mariners'  wages,  concern- 
ing which  there  has  never  been  any  dispute,  and  so 
far  as  a  mariner  makes  a  claim  upon  the  ship  by  a 
proceeding  in  rem  the  jurisdiction  of  the  admiralty 
is  exclusive  {Leon  v.  Galceran,  11  "Wallace,  185), 
because  the  States  cannot  create  a  maritime  lien  (7 
Wallace,  624).  Still,  mariners  may  sue  at  com- 
mon law,  either  in  the  courts  of  the  States,  or  in 
the  Circuit  Court  of  the  United  States,  if  the  sum 
demanded  should  be  sufficient,  and  their  citizenship 
such  as  will  warrant  such  a  suit.  The  mate  is 
deemed  a  mariner,  and  has  the  same  remedies  in 
the  admiralty  as  a  common  sailor;  but  the  master 
has  no  lien  and  cannot  sue  in  rem  (11  Peters,  175), ^ 
though  he  may  sue  in  the  admiralty  in  personam 
(3  Mason,  161  ;3  2  Curtis,  C.  C.  R.  271).^  The 
admiralty  has   also   jurisdiction   over   the   subject 

1  [It  shoiTld  be  remembered  that  m  respect  to  contracts  for  the 
carriage  of  freight  or  passengers,  as  in  respect  to  most  civil  cases  in 
admiralty,  the  State  courts  also  have  jurisdiction  ;  for,  as  we  have 
seen,  the  statute  reads  "  saving  to  suitors  in  all  cases  the  right  of  a 
common-law  remedy,  where  the  common  law  is  competent  to  give 
it."  Thus  a  suit  arising  from  a  contract  to  carry  cattle  from  New 
York  to  Liverpool,  might  be  bronght  either  in  a  State  court  of 
New  York  or  in  the  United  States  District  Court  for  the  Southern 
District  of  New  York,  — or  indeed  in  the  Circuit  Court,  if  the  citizen- 
ship of  the  parties  plaintiff  and  defendant  was  such  as  to  give  the 
Circuit  Court  jurisdiction.] 

2  Steamboat  Orleans  v.  Phcebus. 

*  WilJard  v.  Dorr. 

*  Church  V.  Shellon. 


THE    DISTRICT   COURTS.  289 

of  pilots  and  pilotage,  as  was  settled  in  the  case 
of  Ilohart  v.  Drogan,  10  Peters,  108.  Under  the 
admiralty  law,  persons  who  supply  materials  or 
repairs  for  vessels  in  a  foreign  port  acquire  thereby 
a  lien  on  the  ship,  and  this  lien  may  be  enfoi'ced 
by  a  proceeding  in  admiralty  (7  Wallace,  624).^ 
Though  the  States  can  create  no  liens  except  in 
home  ports,  they  may  create  such  liens  within  their 
own  territory,  and  at  one  time  the  admiralty  courts 
of  the  United  States  took  jurisdiction  of  liens 
created  by  the  States  for  repairs  and  supplies ;  but 
this  jurisdiction  was  finally  abandoned,  under  the 
action  of  the  Supreme  Court  of  the  United  States, 
as  evidenced  by  the  twelfth  amended  admiralty 
rule,  which,  with  the  law  that  preceded  it,  is 
explained  in  Maguire  v.   Card,  21  Howard,  248. ^ 

Another  important  subject  over  which  the  admir- 
alty jurisdiction  extends,  is  that  of  bottomry  and 
respondentia  bonds.  The  master  of  a  ship  in  a 
port   of   necessity,    or  whenever  he  finds   himself 

1  The  Belfast.  [See  also  The  George  Diimois,  68  Fed.  Eep.  926. 
In  the  absence  of  a  State  statute  upon  the  subject,  no  lien  arises  for 
materials  supplied  to  or  repairs  made  upon  a  vessel  in  its  home  port. 
But  if  there  is  a  State  statute  giving  such  a  lien,  it  is  enforceable  in 
the  admiralty  courts,  and  not  in  the  State  courts.  See  The  J.  E. 
Rumbell,  148  U.  S.  1,  where  the  whole  subject  is  discussed.  A  dif- 
ferent view  was  taken  in  Atlantic  Works  v.  Tug  Glide,  157  Mass.  52.5, 
159  Mass.  60.] 

2  [The  Twelfth  Rule  was  changed  back  again  on  May  6,  1 872,  to 
read  as  follows :  "  In  all  suits  by  material  men  for  supplies  or  repairs, 
or  other  necessaries,  the  libellant  may  proceed  against  the  ship  and 
freight  in  rem,  or  against  the  master  or  owner  alone  in  personam.'^ 
Since  this  change  the  courts  have  entertained  suits  against  vessels  on 
behalf  of  material  men,  to  whom  a  lien  was  given  by  a  State  statute, 
as  they  did  before  the  rule  was  first  changed  in  1858.  See  The 
Lottawanna,  21  Wall.  558,  579.] 

19 


290      JUEISDICTION,   PRACTICE,   AND    JUKISPRUDENCE. 

without  funds  in  a  foreign  port  sufficient  to  enable 
him  to  prosecute  the  adventure,  is  authorized  to 
pledge  the  ship,  and,  in  case  of  necessity,  also  the 
cargo,  in  order  to  raise  funds.  He  pledges  the  ship 
by  what  is  called  a  bottomry  bond,  by  which  he 
binds  the  ship  to  pay  the  sum  of  money  advanced, 
and  the  bottomry  premium  charged,  provided  the 
adventure  is  completed,  and  the  ship  arrives  in 
safety.  He  does  not  bind  the  owners,  but  only  the 
property,  and  if  the  ship  fails  to  arrive,  the  lender 
is  understood  to  take  the  place  of  an  insurer,  and 
cannot  recover  his  money.  The  lender  has  no 
claim  to  average  or  salvage,  unless  one  or  both  are 
stipulated  for  in  the  bond.  A  respondentia  bond  is 
of  a  similar  character,  but  is  applicable  to  the 
cargo,  which,  under  the  circumstances  regulated  by 
the  maritime  law,  the  master  may  also  pledge  in  a 
similar  manner.  Over  these  two  subjects,  the 
admiralty  has  complete  jurisdiction. 

Policies  of  insurance  have  formed,  ever  since  the 
case  of  Be  Lovio  v.  Boit,  2  Gallison,  398,  one  of  the 
principal  battle-grounds  on  which  contests  concern- 
ing admiralty  jurisdiction  have  been  fought  out ;  but 
it  is  now  settled,  by  the  case  of  The  Insurance  Com- 
pany V.  Bunham,  11  Wallace,  1,  that  the  admiralty 
has  jurisdiction  over  policies  of  insurance. 

I  now  pass  beyond  the  subject  of  contracts,  and 
arrive  at  the  jurisdiction  of  the  admiralty  over 
jettisons  and  general  average  contributions;  and  I 
consider  that  the  two  cases  of  Bupont  v.  Vance, 
19  How^ard,  162,  and  the  last-mentioned  case  of 
ITie  Insurance  Company  v.  Bunham,  effectively 
settle  that  the  admiralty  jurisdiction  extends  over 


THE   DISTRICT   COUETS.  291 

these  subjects.  Cutler  v,  Rae^  7  Howard,  729, 
was  decided  upon  a  different  theory  of  the  law,  but 
I  believe  it  would  not  now  be  sustained  as  law, 
even  upon  its  own  special  facts.  ^ 

Salvage  services  form  an  undoubted  subject  of 
admiralty  jurisdiction.  A  definition  of  what  is  a 
salvage  service  may  be  found  in  1  Curtis,  C.  C.  R. 
353,2  and  there  is  an  important  distinction  between 
a  salvage  service,  and  a  service  to  be  performed 
upon  the  sea,  for  a  compensation  to  be  paid  at  all 
events,  which  is  pointed  out  in  2  Curtis,  C.  C.  R. 
350.2  ^^  \^\^Q  same  time,  it  should  be  borne  in 
mind  that  there  may  be  a  contract  to  fix  the 
amount  of  salvage  compensation  without  changing 
the  character  of  the  service,  always  provided  that 
the  compensation  is  made  dependent  upon  the  suc- 


1  [But  see  Benedict's  Admiralty  Practice,  §  295,  note,  and 
Ilenry's  Admiralty  Jurisdiction  and  Practice,  page  43.] 

-  Hennessey  v.  The  Versailles.  [In  deciding  this  case,  Judge 
Curtis  said :  "  The  relief  of  property,  from  an  impending  peril  of  the 
sea,  by  the  voluntary  exertions  of  those  who  are  under  no  legal 
obligations  to  render  assistance,  and  the  consequent  ultimate  safety 
of  the  property,  constitute  a  technical  case  of  salvage." 

There  have  been  some  interesting  cases  upon  the  question,  what 
property  may  be  the  subject  of  salvage.  It  has  commonly  been  held 
that  salvage  applies  only  to  ships  or  something  in  the  nature  of  a 
ship.  Thus  in  Cope  v.  Valletfe  Dry  Dock  Co.  (119  U.  S.  625),  it  is 
broadly  said  :  "  No  structure  that  is  not  a  ship  or  vessel  is  a  subject 
of  salvage."  In  an  earlier  case,  however.  Judge  Lowell  had  decided, 
in  that  spirit  of  independence  and  of  equity  which  marked  his  judicial 
career,  that  a  raft  of  logs  might  be  the  subject  of  salvage :  Fijii/ 
Thousand  Feet  of  Timber,  2  Lowell's  Dec.  64.  A  recent  English  case. 
Gas  Float  WhiHo7i  No.  2,  [1896]  Prob.  42,  takes  the  more  technical 
view  acted  upon  in  Cope  v.  Vallette,  supra,  but  this  case  is  pending, 
on  appeal,  in  the  House  of  Lords.] 

3  The  Independence. 


292      .JURISDICTION,   PEACTICE,   AND    JUKISPRUDENCE. 

cess  of  the  service,  and  is  not  to  be  paid  at  all 
events.^ 

In  connection  with  this  subject  of  salvage  services 
are  contracts  of  consortship,  which  have  heretofore 
existed  in  practice,  and  which  are  sanctioned  and 
held  to  be  within  the  admiralty  jursdiction  in  3 
Howard,  568. 

Another  contract  cognizable  in  courts  of  admi- 
ralty is  the  contract  of  ransom ;  which,  although  it 
grows  out  of  a  state  of  war,  is  a  contract  that  may 
be  enforced  on  the  instance  side  of  the  admiralty 
jurisdiction.  Ransom  is  an  undertaking  to  pay  to 
captors  an  agreed  sum  of  money,  for  a  relinquish- 
ment of  the  interest  and  benefit  which  they  might 
acquire  or  consummate  in  the  captured  property  by 
the  regular  adjudication  of  a  prize  tribunal,  whether 
it  be  an  interest  in  rem,  a  lien,  or  a  mere  title  to 
expenses.  Ransom  is  usually  effected  by  bills 
drawn  by  the  master  or  other  agent  of  the  captured 
vessel  or  cargo  on  the  owners,  and  in  Maisonnaire 
V.  Keating,  2  Gallison,  336,  Judge  Story  held  that 
the  cognizance  of  ransom  bills  belongs  exclusively 
to  the  admiralty. 

Another  subject  of  admiralty  jurisdiction,  on  the 
instance  side  of  the  court,  is  surveys.  Surveys 
may  be  required  in  two  ways :  1st.  Where  a  pol- 
icy of  insurance,  by  its  terms,  requires  "a  regular 
survey,"  to  declare  the  vessel  unseaworthy  and 
discharge  the  underwriters.     2d.    Where  mariners 

1  [When  there  is  a  contract  to  pay  a  fixed  sum,  whether  the  ser- 
vice be  successful  or  not,  so  that  no  claim  for  salvage  arises,  the  salvor 
may  nevertheless  proceed  in  rem,  for  the  contract  in  such  a  case, 
being  essential  to  the  preservation  of  the  ship,  creates  a  lien  upon  it. 
See  The  Roanoke,  50  Fed.  Rep.  574.] 


THE    DISTEICT    COUKTS.  293 

and  freighters  claim  to  be  discharged  from  their 
contracts  on  account  of  the  unseaworthiness  of  the 
vessel.  In  such  cases,  the  admiralty  courts  of  all 
commercial  countries  have  jurisdiction  to  ascertain 
the  fact  of  seaworthiness  or  otherwise,  by  laws  and 
customs  of  the  port  in  which  the  vessel  happens  to 
be ;  and  it  seems  that  the  admiralty  courts  of  the 
United  States  may  exercise  this  power.  Dorr  v. 
The  Pacific  Insurance  Gomioany^  7  Wheaton,  582; 
Janney  v.  Columbian  Insurance  Company,  10 
Wheaton,  411.1 

[Note.  —  The  jurisdiction  in  admiralty  does  not  depend  upon,  and 
is  not  controlled  by,  the  citizenship  or  residence  of  the  parties.  A 
libel  in  personam  may  be  maintained  within  the  jurisdiction  of  a  Dis- 
trict Court,  provided  only  that  service  can  be  made  upon  the  libellee, 
or  that  an  attachment  can  be  made  upon  personal  property  of  his 
within  the  district.  In  re  The  Louisville  Underwriters,  134  U.  S.  488. 
If  a  suit  in  admiralty  is  between  American  citizens,  or  between  an 
American  citizen  and  a  foreigner,  and  the  cause  of  action,  as,  for 
instance,  a  collision,  occurred  in  foreign  waters,  the  court  would  ad- 
minister the  admiralty  law  of  this  country,  except  that  it  would  take 
notice  of  any  local  law  or  usage,  such  as  a  pilot  regulation.  The 
court  may,  at  its  discretion,  entertain  a  suit  between  foreigners,  — 
and  it  commonly  does  so,  unless  there  is  some  particular  rea.son,  — 
such  as  the  request  of  a  consul  or  minister,  or  a  treaty  stipulation, 
for  refusing  to  take  jurisdiction.  In  such  a  case,  tlie  court  would 
administer  the  admiralty  law  as  it  is  understood  by  the  courts  of  the 
United  States  with  this  qualification  :  "  If  the  maritime  law,  as  admin- 
istered by  both  nations  to  which  the  respective  ships  belong,  be  tlie 
same  both  in  respect  to  any  matter  of  liability  or  obligation,  such 
law,  if  shown  to  the  court,  should  be  followed  in  that  matter  in 
respect  to  which  they  so  agree,  though  it  differ  from  the  maritime 
law  as  understood  in  the  country  of  the  forum."  See  Ex  parte 
Newman,  14  Wall.  152:  The  Belgenland,  114  U.  S.  355 ;  The  Wel- 
haven,  55  Fed.  Rep.   80 ;     The  Liviiis,  47  Fed.  Eep.  825.] 

1  In  the  Revised  StatutevS,  Chapter  5,  Title  53,  provision  is  made  for 
special  proceedings  to  ascertain  the  seaworthiness  of  vessels  bound  to 
sea,  at  the  instance  of  the  first  oiiicer  and  a  majority  of  the  crew. 


294      JUKISDICTION,   PEACTICE,    AND   JUEISPRUDENCE. 


CHAPTER   XI. 

ADMIRALTY  {continued). 

In  the  last  Lecture,  gentlemen,  I  had  traversed,  in 
part,  the  ground  of  the  admiralty  jurisdiction  of 
the  District  Courts  of  the  United  States.  I  had 
mentioned  the  different  contracts  over  which  they 
have  jurisdiction,  and  had  advanced  somewhat 
beyond  that  to  cases  which  depended,  not  upon 
admiralty  contracts,  but  still  upon  the  nature  of  the 
subject-matter,  such  as  salvage  and  one  or  two  other 
subjects  to  which  you  will  remember  I  adverted  at 
the  close  of  the  last  Lecture.  I  now  continue  that 
enumeration. 

There  are  two  kinds  of  action  concerning  the  title 
and  the  right  of  possession  of  vessels,  called  petitory 
and  possessory  actions.  Petitory  actions  are  suits 
to  try  the  legal  title  to  a  vessel,  or  some  part  of  it ; 
and  possessory  suits  are  suits  to  determine  who 
shall  have  possession  of  a  vessel,  or  which  part- 
owners  shall  have  possession  of  a  vessel,  for  the 
purpose  of  employing  it.  Over  both  these  subjects, 
admiralty  in  the  United  States  has  jurisdiction. 
This  was  decided  in  the  case  of  Ward  v.  Peck,  18 
Howard,  267.  Concerning  petitory  actions  it  is 
unnecessary  to  say  more  than  to  repeat  what  I  have 


ADMIKALTY.  295 

already  said,  that  the  purpose  of  the  action  is  to 
try  the  legal  title  to  a  vessel,  or  some  part  of  it. 
Possessory  suits,  perhaps,  require  further  observa- 
tion. As  it  was  said  very  long  ago,  vessels  are 
built  to  plough  the  seas,  not  to  lie  by  the  walls; 
and  accordingly  courts  of  admiralty  take  jurisdic- 
tion of  disputes  between  part-owners,  when  they 
are  unable  to  agree  on  the  mode  in  which  their 
vessels  shall  be  employed.  The  court  will  always 
assign  to  the  majority  the  right  to  dictate  the 
adventure  upon  which  the  vessel  shall  sail,  if  the 
majority  agree  and  desire  to  employ  the  vessel  on 
any  particular  adventure ;  but  it  will  require  the 
majority  to  give  security  to  the  minority  for  the 
return  of  the  vessel  in  like  good  order  and  condi- 
tion as  when  the  adventure  was  begun.  On  the 
giving  of  such  security,  the  court  makes  a  decree 
allowing  the  majority  of  the  part-owners  to  employ 
the  vessel  in  the  adventure  in  which  they  desire  to 
employ  it.  If  the  majority  do  not  desire  to  employ 
the  vessel  in  any  adventure,  but  the  minority  do, 
the  court  will  assign  to  the  minority  the  right  so 
to  employ  the  vessel  on  similar  terms,  to  wit, 
security  to  return  the  ship  in  safety,  or  make  com- 
pensation for  its  loss ;  but  in  either  of  these  cases, 
the  ship  is  employed  on  account  either  of  the  major- 
ity, in  the  first  instance,  or  of  the  minority,  in  the 
second  instance,  and  the  other  part-owners  can 
receive  no  compensation  for  their  interest  or  the 
use  of  their  interest  in  the  vessel.  It  is  considered 
simply  as  an  adventure  of  those  who  thus  employ 
the  vessel,  and  the  profits  or  the  loss  are  for  their 
account. 


206      JUKISDICTION,   PRACTICE,   AND   JURISPEUDENCE. 

You  will  find  this  subject  very  much  discussed 
and  most  of  these  principles  stated  in  a  case  in  11 
Peters,  175.  ^ 

By  the  common  law,  the  liability  of  owners  of 
vessels  is  limited  only  by  the  just  claims  either  of 
the  shippers  of  merchandise  or  of  those  who  have 
suffered  from  a  tort  of  the  master  and  mariners. 
By  the  ancient  maritime  lav\^,  it  was  otherwise, 
and  the  ship-owner  could  always  discharge  himself 
from  liability  by  surrendering  his  interest  in  the 
vessel  and  freight.  That  principle  of  the  ancient 
maritime  law  of  the  world  was  enacted  by  Congress 
under  the  Act  of  March  3,  1851,  which  you  will 
find  explained  in  the  case  of  The  Norwich  Company 
V.  Wright,  13  Wallace,  104,  where  it  was  held  by 
the  court,  that,  under  this  Act  of  Congress,  enab* 
ling  the  ship-owner  to  surrender  his  interest  in  the 
vessel  and  freight  (I  think  that  was  a  case  of  col- 
lision, but  it  would  be  applicable  in  any  case  where 
ship-owners  were  liable  for  damages),  the  admiralty 
court  had  jurisdiction  to  receive  such  surrender, 
and  appoint  trustees  to  take  possession  of  the  sub- 
ject-matter, the  vessel  or  freight,  to  turn  it  into 
money,  bring  the  money  into  court,  and  the  court 
would  then  distribute  it  amongst  those  entitled  to 
it.  And  in  the  same  case  it  is,  perhaps  I  should 
not  say  decided,  but  very  clearly  intimated,  that  if 
the  ship  is  entirely  lost,  and  there  is  no  freight 
which  can  be  attached  by  the  admiralty  court,  then 
the  liability  of  the  ship-owner  is  at  an  end,  it  being 

1  The  Steamboat  Orleans  v.  Phmbus.  The  court  never  directs  a 
sale  In  niiy  dispute  between  part-owners.  Ibid.  [See  The  Marengo, 
1  Lowell  bee.  52.] 


ADMIRALTY.  297 

considered  that  his  liability  is  only  coextensive 
with  his  interest  in  the  vessel  and  freight.  This, 
you  perceive,  forms  a  separate  subject  of  admiralty 
jurisdiction,  and  I  have  mentioned  it  as  such.^ 

I  come  now  to  a  different  class  of  cases  under 
this  jurisdiction,  namely,  maritime  torts,  and,  as 
I  mentioned  in  the  last  Lecture,  the  jurisdiction 
over  torts  or  wrongs  depends  on  the  locality  where 
they  are  committed.  If  they  are  committed  on  the 
high  seas,  or  within  any  navigable  waters  of  the 
United  States,  that  is,  the  great  lakes  or  navigable 
rivers,  then  they  are  within  the  jurisdiction  of  the 
admiralty. 2     For   instance,    personal   assaults   and 

1  The  provisions  of  the  Act  of  1851  are  re-enacted  in  Revised 
Statutes,  §§  4282-4286.  But  this  law  does  not  release  the  ship- 
owner from  the  payment  of  full  costs,  if  he  ajipears  and  makes  de- 
fence. The  Wanato,  95  U.  S.  600.  [The  rule  applies  to  foreign 
ships.  The  Scotland,  105  U.  S.  24,  and  to  ships  engaged  in  inland 
navigation,  In  re  Gamett,  141  U.S.  1,  11.  But  the  rule  does  not 
apply  when  a  ship  runs  into  a  building  on  land,  or  sets  fire  to  it. 
Ex  parte  Phenix  Insurance  Co.,  118  U.  S.  610  ;  The  Pljjmouth,  3  Wall. 
20.  See  also,  as  to  the  limitation  of  liability,  Cit;/  of  Norwich, 
118  U.  S.  468;  The  Scotland,  Ibid.  507;  The  Great  Western,  Ihid. 
520;  Butler  v.  Boston  Sf  Savannah  Steamship  Co.,  130  U.  S.  527; 
In  re  Gamett,  141  U.   S.  1. 

The  Act  of  Feb.  13,  1893  (27  Stat.  445)  provides  as  follows  :  "  If 
the  owner  of  any  vessel  transporting  merchandise  or  property  to  or 
from  any  port  in  the  United  States,  shall  exercise  due  diligence  to 
make  said  vessel  seaworthy,  and  properly  manned,  equipped  and 
supplied,  neither  the  vessel,  her  owner  or  owners,  agent  or  charterers, 
shall  become  or  be  held  responsible  for  damage  or  loss  resulting 
from  faults  or  errors  in  navigation  or  in  the  management  of  said 
vessel,  etc."] 

2  [For  example,  if  a  collision  between  two  vessels  should  occur  on 
a  river,  within  the  territory  of  a  State,  which  was  not  navigable  to 
the  sea,  by  reason  of  a  dam  intervening,  or  for  any  other  cause,  the 
State  courts  alone  would  have  jurisdiction  of  it.  If  a  similar  col- 
lision occurred  on  a  river  navigable  to  the  sea,  or  if  it  occurred  in  a 


298      JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

batteries,  if  committed  in  either  of  the  localities 
to  which  I  have  just  referred,  are  within  the  admir- 
alty jurisdiction ;  but  it  is  necessary,  in  the  case  of 
personal  assaults,  that  the  suit  should  be  in  per- 
sonatn ;  that  is,  against  the  person  who  committed 
the  assault,  in  contradistinction  to  being  in  rem, 
as  it  may  be  in  cases  of  other  torts  which  I  shall 
now  proceed  to  enumerate. 

One  of  them  is  collisions  between  two  vessels, 
arising  either  from  neglect  of  one  of  them,  or  from 
the  contributory  neglect  of  both ;  and  in  either  of 
these  cases  the  admiralty  has  jurisdiction.  These, 
however,  are  cases  of  proceedings  in  rem  as  well  as 
in  personam.  A  collision  case  is  not  necessarily 
in  rem  ;  it  may  be  brought  against  the  owner  for 
the  neglect  or  fault  of  his  servants,  that  is,  the 
master  and  crew.  In  that  case,  as  I  have  just 
explained,  the  liability  of  the  owner  is  limited  to 
his  interest  in  the  vessel  and  freight,  and  therefore, 
although,  technically  speaking,  there  is  jurisdic- 
tion   in  personam   in   case    of    collision,    there    is 

harbor,  or  on  tlie  sea,  within  the  three-mile  limit,  the  State  courts 
and  the  United  States  District  Court  would  have  concurrent  jurisdic- 
tion of  it.  If  it  occurred  on  the  high  seas,  beyond  the  three-mile 
limit,  the  District  Court  would  have  exclusive  jurisdiction  of  it. 
Manchester  v.  Massachusetts,  139  U.  S.  264  ;  D^roe  Manufacturing 
Co.,  108  U.  S.  401.  It  was  held  in  South  Carolina  that  the  jurisdic- 
tion of  the  District  Court  did  not  exceed  the  bound*  of  the  State,  and 
that  these  bounds  do  not  extend  to  "  the  frontier  or  belt  of  water 
recognized  by  the  law  of  nations,"  i.  e.  the  tliree  mile  limit.  The 
llnngnria,  41  Fed.  Kep.  109;  42  Fed.  Rep.  .510.  But  this  decision 
can  be  supported,  if  supported  at  all,  only  under  the  peculiar  laws 
and  grants  of  the  State,  which  are  stated  in  the  opinion.  See  Hum- 
boldt Lumber  Manufacturers'  Association  v.  Christopherson,  73  Fed. 
Rep.  239.] 


ADMIRALTY.  299 

generally  no   practical    object   to   be   obtained   by 
such  a  suit.^ 

Another  subject  of  jurisdiction  of  torts  is  spolia- 
tions by  force  on  the  high  seas,  or  navigable  waters 
of  the  United  States.  These  spoliations  by  force 
may  be  either  by  non-commissioned  vessels,  as  by 
pirates ;  or  by  the  master  and  crew,  or  a  portion  of 
the  crew,  of  a  vessel  which  is  not  a  pirate,  not 
engaged  in  a  general  system  of  plunder  of  all  man- 
kind, but  who,  on  some  particular  occasion,  commit 
an  act  of  spoliation;  or  they  may  be  committed  by 
vessels  commissioned  as  public  armed  ships  of  the 
United  States.  In  all  these  cases  of  non-commis- 
sioned vessels,  or  vessels  commissioned  by  the 
United  States,  the  admiralty,  in  this  country,  has 
jurisdiction  to  cause  restitution  of  what  is  seized, 
and  award  damages  where  restitution  alone  would 
not  do  complete  justice.  So  in  the  case  of  foreign 
ships,  ships  commissioned  by  foreign  countries,  — 
public  armed  ships  of  other  countries,  to  express  it 
differently,  — committing  acts  of  spoliation  withhi 
our  own  waters,  that  is,  intra  fauces  terrce,  or  within 
three  leagues  of  the  coast,  that  being  considered 
to  be  the  limit  of  our  exclusive  jurisdiction  over 
the  high  seas ;  and  accordingly  an  Act  of  Congress 

1  [It  is  held  that  the  admiralty  law  gives  no  right  of  action  to 
recover  damages  for  the  death  of  a  person  killed  by  a  marine  tort. 
The  Harrisburg,  119  U.  S.  199.  See  also  The  Corsair,  145  U.  S.  335. 
But  it  seems  that  when  a  State  statute  gives  such  a  right  of  action, 
it  may  be  enforced  in  the  Admiralty  Court  by  a  suit  in  personam ; 
and  if  the  statute  confers  a  lien  upon  the  offending  ship  it  must  be 
enforced  by  a  suit  in  rem  in  the  Admiralty  Court.  See  The  City  of 
Norwalk,  55  Fed.  Rep.  98  (affirmed  in  61  Fed.  Rep.  3G4),  and  The 
Willamette,  70  Fed.  Rep.  874,  where  the  cases  are  reviewed.] 


300      JURISDICTION,    PRACTICE,   AND   JURISPRUDENCE. 

was  passed  on  the  20th  of  April,  1818,  found  in 
3  Statutes  at  Large,  449,  §  7,  by  which  jurisdiction 
was  given  to  the  District  Courts  of  the  United 
States  in  all  cases  where  foreign  vessels  committed 
such  acts  of  spoliation  within  the  waters  of  the 
United  States.^ 

There  is  another  class  of  cases  where  foreign 
vessels  may  be  held  responsible  in  our  admiralty 
courts,  —  cases  where  vessels  have  increased  their 
force  here,  contrary  to  our  rights  and  duties  as 
neutrals.  For  instance,  during  the  wars  which 
grew  out  of  the  French  Revolution,  there  were  cases 
where  French  privateers,  commissioned  by  the 
French  government,  increased  their  force  here; 
that  is,  they  obtained  an  increase  of  armament,  or 
some  repairs  peculiar  to  public  armed  ships,  in  our 
ports,  contrary  to  our  rights  and  duties  as  a  neutral 
nation,  and  then  proceeded  to  prey  upon  the  com- 
merce of  England  or  some  other  country  with  which 
France  was  at  war.  That  was  a  breach  of  our 
neutrality  acts,  and  accordingly,  if  such  a  vessel 
made  a  capture,  and  either  the  captured  vessel  was 
brought  into  one  of  our  ports,  or  the  vessel  which 
made  the  capture  came  into  our  ports,  they  were 
considered  to  be  subject  to  our  jurisdiction,  because 
they  had  previously  been  guilty  of  this  breach  of 
our  rights  and  duties  as  a  neutral  nation.  This 
was  decided  in  the  case  of  The  Invincible,  1 
Wheaton,    238.2 

1  [The  waters  of  the  United  States  also  include  all  "  bays,  wholly 
within  its  territory,  not  exceeding  two  marine  leagues  in  width  at 
the  mouth,"  —  without  regard  to  the  distance  of  the  headlands  from 
the  main  coast  line.     Manchester  v.  ^fass(trIntsefts,  139  U.  S.  240.] 

2  [But  see  a  note  on  this  case  in  Daua's  Wheaton,  page  551.] 


ADMIRALTY.  301 

But  whenever  a  public  armed  ship  of  a  foreign 
nation,  which  has  been  guilty  of  no  breach  of  duty 
to  us,  makes  a  capture  upon  the  high  seas,  the 
question  of  the  rightfulness  of  the  capture  must  be 
decided  in  the  courts  of  the  country  of  the  captor, 
and  our  courts  cannot  interfere.  This,  also,  you 
will  find  in  this  same  case  of  The  Invincible,  in  1 
Wheaton,  238. 

Another  class  of  cases  over  which  District  Courts 
have  jurisdiction  are  revenue  seizures,  made  on  the 
high  seas,  or  on  waters  navigable  from  the  sea  by 
vessels  of  ten  or  more  tons  burden.  That  was  the 
limit  laid  down  in  the  Judiciary  Act,  and  which, 
I  believe,  has  always  since  been  observed,  and  such 
seizures  were  decided  by  the  Supreme  Court  to  be 
cases  of  admiralty  jurisdiction.  Whelan  v.  The 
United  States,  7  C  ranch,  112,  involved  this  ques- 
tion, and  the  decision,  as  I  have  said,  was  that 
these  were  civil  cases  of  admiralty  jurisdiction, 
and  to  be  tried  as  such,  without  the  intervention  of 
a  jury. 

So  as  to  informations  filed  by  the  District  Attor- 
ney to  enforce  forfeitures  of  vessels  for  breaches  of 
the  statute  laws  of  the  United  States.  There  are 
various  laws  of  the  United  States  for  the  purpose  of 
preventing  the  slave  trade,  and  for  the  purpose  of 
preventing  various  injuries  to  foreign  countries  ;  — 
whatever  may  be  the  acts  of  Congress  which  inflict 
the  forfeiture,  information  filed  by  the  District 
Attorney  in  the  name  of  the  United  States  to  inflict 
such  forfeiture  is  within  the  jurisdiction  of  the 
admiralty ;  and  although  it  is  a  case  of  forfeiture, 
it  is  still  considered  to  be  a  case  of  admiralty  juris- 


302      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

diction  on  the  civil  side  of  the  court.  This  has 
been  decided  in  reference  to  various  acts  of  Con- 
gress. The  earliest  case,  a  very  early  one,  is  The 
United  States  v.  La  Vengearice,  3  Dallas,  297. 
Another  case  is  that  of  The  Sally,  2  Cranch,  406. 

The  District  Court  also  has  the  entire  prize  juris- 
diction. This  was  conferred  upon  that  court  by 
the  Judiciary  Act  and  by  the  Act  of  Congress 
passed  on  the  30th  of  June,  1864,  found  in  13 
Statutes  at  Large,  306.  By  this  latter  act,  the 
entire  subject  of  prize  and  prize  proceedings  is 
regulated ;  and  it  may  be  worthy  of  note,  as  we  go 
along,  that,  by  the  thirteenth  section  of  this  act, 
appeals  from  the  District  Court  in  prize  cases, 
instead  of  being  taken  to  the  Circuit  Court,  as  they 
are  in  all  other  cases,  are  taken  directly  to  the 
Supreme  Court.  The  Circuit  Courts,  therefore, 
have  no  jurisdiction  overprize  cases;  the  District 
Court  and  the  Supreme  Court  possess  the  entire 
jurisdiction. 

I  have  now  gone  through  with  those  subjects 
over  which  the  District  Courts  of  the  United  States 
have  admiralty  jurisdiction,  and  I  now  wish  to 
direct  your  attention  to  some  subjects  over  which 
it  has  been  decided  they  have  not  jurisdiction ; 
because  it  is  as  important  to  be  acquainted  with 
the  negative  as  it  is  with  the  affirmative  on  this 
subject.  1 

1  There  is  nothing  in  the  nature  of  admiralty  jurisdiction,  or  of 
an  appeal  in  admiralty,  to  prevent  parties,  either  in  prize  or  instance 
causes,  from  submitting  their  case  l)y  rule  of  court  to  arbitration, 
as  in  a  court  of  common  law  or  ecjuity.  For  the  mode  of  acting  on 
an  award  in  a<lniiralty  proceedings  on  appeal,  see  United  States  v. 
Farragut,  22  Wallace,  406. 


ADMIKALTY.  303 

First,  then,  admiralty  courts  have  no  jurisdiction 
over  contracts  to  build  vessels;  for,  although 
vessels  are  instruments  of  commerce,  and  are 
necessary  instruments  of  maritime  commerce,  yet 
nevertheless  such  a  transaction  is  considered  to 
be  so  entirely  a  transaction  upon  the  land,  that 
the  Supreme  Court  has  held  the  Admiralty  has  no 
jurisdiction.  This  was  decided  in  the  case  of  The 
Ferry  Company  v.  Beers,  20  Howard,  393.  ^ 

Nor  have  they  jurisdiction  over  a  contract  to 
supply  engines  for  a  sea-going  steamer.  This  was 
decided  in  the  case  of  Roach  v.  Chapman,  22 
Howard,  129. 

Nor  have  they  any  jurisdiction  to  enforce  mort- 
gages upon  ships,  as  was  held  in  Bogart  v.  The 
John  Jay,  17  Howard,  399.  And  where  the  builder 
of  a  ship  had,  by  the  contract,  renewed  a  lien  to 
himself  as  security  for  some  part  of  the  money 
which  he  was  to  receive  for  building  the  ship,  it 
was  held  that  the  admiralty  had  no  jurisdiction  to 
enforce  this  lien;  that  it  was  like  the  case  of  a 
mortgage  on  a  ship,  somewhat  different  in  form, 
but  the  same  in  substance  and  principle,  each  being 
intended  as  a  security  for  money,  and  therefore 
there  was  no  jurisdiction.  That  was  held  in  20 
Howard,  393.2 

Nor  has  the  admiralty  any  jurisdiction  over 
accounts  between  part-owners  of  vessels.     That  was 

1  [The  Glenmont,  34  Fed.  Rep.  402.] 

2  [Britton  v.  The  Venture,  21  Fed.  Rep.  928.  But  the  Admiralty 
Court  may  entertain  claims  against  a  fund  in  the  Registry,  although 
the  claims  are  based  on  mortgages.  The  Lottawanna,  21  Wall.  558; 
The  Kate  O'Neil,  65  Fed.  Hep.  111.] 


304      JUEISDICTION,   PKACTICE,   AND    JUKISPRUDENCE. 

decided  in  11  Peters,  175.  And,  speaking  gen- 
erally, it  may  be  said  that  the  admiralty  has  no 
jurisdiction  to  take  accounts.  Its  proceedings  are 
summary  and  simple,  and  not  adapted  to  the  taking 
of  complicated  accounts.  There  are  cases,  how- 
ever, in  which,  the  jurisdiction  of  the  Admiralty 
being  perfectly  clear  and  settled,  it  may  become 
necessary  incidentally  to  take  an  account,  in  the 
exercise  of  that  jurisdiction,  and  there  accounts  are 
taken;  as,  for  instance,  you  know  that,  in  the 
whale  fisheries,  the  officers  and  the  crew,  instead  of 
being  paid  w^ages,  go  on  what  is  called  a  "lay,"  or 
share ;  and  of  course  if  the  managing  owner,  on  the 
return  of  the  ship,  should  refuse  to  pay  a  mariner 
what  he  demands  as  his  due,  the  amount  which  is 
due  can  only  be  ascertained  by  taking  an  account 
of  the  proceeds  of  the  voyage;  and  disputes  between 
mariners,  and  even  officers,  and  the  managing 
owners,  are  not  infrequent  in  practice,  and  where 
they  occur,  the  court,  having  first  decided  that  the 
mariner  or  officer  is  entitled  to  his  share,  either 
with  or  without  deduction  or  increase,  as  the  case 
may  be,  if  the  parties  do  not  agree  upon  what  his 
share  is,  it  is  necessary  to  refer  the  case  to  an 
assessor,  to  take  an  account  of  the  voyage.  ^  This 
illustrates  what  I  mean  when  I  say,  that,  if  the 
admiralty  has  jurisdiction,  it  will  not  be  prevented 
from  exercising  that  jurisdiction  simply  because  it 
is  necessary  to  take  an  account;  but  they  have  not 
jurisdiction  founded  simply  upon  a  prayer  that  an 
account  may  be  taken,  even  between  part-owners  of 
a  vessel. 

1  Macomher  v.  Thompson,  1  Sumner,  384. 


ADMIKALTY.  305 

Nor  have  they  any  jurisdiction  over  trusts,  either 
actual  or  constructive.  This  was  discussed  and 
explained  in  the  case  of  Kellum  v.  Emerson,  2 
Curtis's  C.  C.  R.  79,  And  in  accordance  with  this 
is  the  settled  law,  that  they  have  nothing  to  do 
with  the  equitable  titles  to  vessels:  they  proceed 
upon  legal  titles,  not  upon  equities.^ 

Mr.  Justice  Story  so  held  in  the  case  of  Andrews 
v.  Essex  Company,  3  Mason,  16;  and  in  the  same 
case  he  decided  that  the  admiralty  had  no  jurisdic- 
tion to  decree  specific  performance  of  a  contract, 
which  is  a  necessary  consequence  of  the  fact  that 
they  have  not  equity  jurisdiction  in  that  sense. 
They  can  compel,  in  some  cases,  the  performance 
of  a  contract,  but  not  in  the  way  that  a  court  of 
equity  can  do  it ;  and  you  may  consider  it  is  settled 
law,  that  the  admiralty  acts  upon  contracts  that 
are  completed,  and  not  upon  those  which,  being 
left  incomplete  by  the  parties,  require  the  aid  of  a 
court  of  equity  to  complete  them,  as  well  as  to 
enforce  them  after  they  are  completed. 

The  admiralty  has  no  jurisdiction  over  set-offs. 
It  may,  under  some  circumstances,  make  deduc- 
tions from  a  claim,  provided  the  ground  of  such 
deductions  is  so  connected  with  the  claim  itself  as 
to  constitute  an  equitable  right  to  a  deduction ;  but 
they  will  not  take  cognizance  of  an  independent 
claim,  and  set  off  that  independent  claim  against 
what  is  asserted  to  be  due  and  sous'ht  to  be  recovered 
by  the  libel.  You  will  find  this  laid  down  in  the 
case  of  The  Water-  Witch,  1  Black,  494. 

I   think  I  have   now  gone   over,    sufficiently  in 

1  [See  The  Eclipse,  135  U.  S.  599.] 
20 


306      JUKISDICTIOX,    PKACTICE,   AND   JUKISPKUDENCE. 

detail  for  the  purposes  of  these  Lectures,  the  admi- 
ralty jurisdiction,  its  extent,  what  subjects  it  covers, 
and  what  subjects  it  does  not  cover;  and  I  now 
wish  your  attention  to  some  things  I  have  to  say 
about  the  jurisprudence  which  is  administered  by 
this  court  in  the  exercise  of  its  admiralty  juris- 
diction. 

It  is  necessary  to  divide  this  subject,  and  con- 
sider, first,  what  law  this  court  administers  in 
instance  causes,  using  that  technical  term  as  apply- 
ing to  civil  causes  both  of  contract  and  of  tort,  and 
those  other  civil  causes  which  I  have  mentioned 
over  which  this  court  has  jurisdiction. 

It  has  been  said,  and  I  have  no  doubt  correctly, 
that,  so  far  as  this  court  exercises  jurisdiction,  it 
is  a  court  of  equity  acting  on  maritime  affairs.^ 
That  was  the  definition  given  by  Mr.  Justice  Story 
in  the  case  of  The  Sarah  Afin,  2  Sumner,  206.  At 
the  same  time,  it  would  not  be  safe  to  assume,  as 
you  have  already  learned  from  what  I  have  said, 
that  a  court  of  admiralty  is  capable  of  admin- 
istering many  of  those  rules  and  principles  of 
equity  which  are  applied  by  courts  of  equity. 
The  peculiar  law  which  admiralty  courts  adminis- 
ter is,  first,  the  maritime  law  of  the  world,  —  that 

1  [With  this  difference  perhaps:  it  is  the  characteristic  of  admi- 
ralty to  act  in  rem  ;  whereas  it  is  the  characteristic  of  equity  to  act  m 
personam.  As  to  what  are  maritime  contracts,  i.  e.  within  the  admiralty 
jurisdiction,  see  The  Progrcsso,  46  Fed.  Rep.  292;  Haller  v.  Fox,  51 
Fed.  Rep.  298 ;  Danace  v.  The  MarpioUa,  37  Fed.  Rep.  367 ;  Wishart 
V.  The  Joseph  Nixon,  43  Fed.  Rep.  926.  A  contract  to  procure  insur- 
ance is  not  a  maritime  contract.  Afarquardt  v.  French,  53  Fed.  Rep. 
603.  As  to  what  is  a  ship,  see  Wood  v.  Two  Barges,  46  Fed.  Rep. 
204  ;  The  City  of  Pittsburgh,  45  Fed.  Rep.  699 ;  Pile-Driver  E.  0.  A., 
69  Fed.  Rep.  1005.] 


ADMIKALTY.  307 

law  which,  in  the  sense  of  the  Roman  law,  is  jus 
gentium.  The  Romans  did  not  mean  hy  jus  gentium 
what  we  call  the  law  of  nations ;  that  is,  law  which 
regulates  the  rights  and  duties  of  nations  in  respect 
to  each  other;  but  they  meant  those  laws  found 
in  all  nations,  and  substantially  the  same  in  all. 
Those  principles  and  rules  of  law  which  existed 
everywhere,  they  called  by  the  name  jus  gentium  ; 
and  this  maritime  law  does  exist  in  all  civilized 
maritime  countries,  though  it  has  been  restricfed 
to  some  extent  in  England,  through  the  prohibi- 
tions which  the  common  law  courts  issued  to  the 
Admiralty  Court.  With  that  exception,  and  the 
consequent  result  that  there  has  been  on  some  sub- 
jects a  certain  narrowness  in  the  law  of  England 
which  exists  to  this  day,  the  admiralty  law  of  the 
world  is  much  the  same  everywhere.  There  are 
some  positive  differences;  but  in  its  great  prin- 
ciples this  law  exists  everywhere,  and  is,  speaking 
generally,  substantially  the  same  everywhere. 

This  law  is  drawn  from  various  sources.  First, 
from  the  codes  which  were  made  in  the  Middle 
Ages,  the  most  ancient  and  venerable  of  which  is 
the  Consolato  del  Mare,  supposed  to  have  originated 
either  on  the  Mediterranean,  or  in  some  part  of 
Spain,  and  followed  by  others,  from  time  to  time 
drawn  up  and  enacted  into  positive  law  by  different 
countries  for  the  government  of  their  commerce. 
These  codes  are  all  collected  by  Pardessus,  in  his 
great  work,  in  six  volumes  quarto,  and  they  may  be 
said  to  be  the  principal  sources  of  the  maritime 
law,  or  perhaps  evidences,  rather  than  sources,  of 
the    maritime    law    of    the    world    to    this    day. 


308      JURISDICTION,   PRACTICE,    AND    JURISPRUDENCE. 

Amongst  the  codes  he  has  thus  collected  is  the 
famous  ordinance  of  Louis  XIV.,  which  was  drawn 
up  by  the  great  lawyers  of  his  reign,  and  enacted 
into  law  by  a  decree  of  the  king,  and  which,  from 
its  comprehensiveness,  exactness,  and  close  adapta- 
tion to  the  maritime  affairs  of  the  world,  though 
not  of  authority  with  other  nations,  has  been  always 
much  resorted  to  as  evidence  of  what  the  law  ought 
to  be  and  is.  In  addition  to  these  sources  are  the 
Continental  and  English  and  American  writers  on 
maritime  law,  both  older  and  more  recent.  And 
on  this  subject  France  has  produced  perhaps  the 
most  important  works,  unless  you  consider  that 
those  of  a  more  recent  time  in  our  own  country, 
the  authors  of  which  have  had  the  advantage  of 
consulting  and  being  informed  by  these  French 
books,  should  be  to  us  more  useful,  as  probably 
they  are. 

Another  source  is  the  decisions  of  the  courts  of 
admiralty  and  common  law  on  maritime  questions. 
They  have  now  become  numerous  and  of  great 
importance  and  value ;  but  I  am  old  enough  to 
remember  Avhen  they  were  few,  and  when  compara- 
tively little  light  could  be  gained  upon  very  many 
questions  of  admiralty  law  by  consulting  any 
decisions,  either  English  or  American.  Light  was 
to  be  looked  for  rather  from  the  other  sources  to 
which  I  have  adverted  than  from  decisions  in  the 
courts.  1 

1  Judge  Curtis  did  not  mean  to  intimate,  in  these  obsen'ations, 
that  the  general  maritime  law  of  the  world  has  any  inherent  force 
of  its  own  in  this  country.  It  derives  its  force,  in  the  courts  of 
the  United  States,  from  that  provision  of  the  Constitution  which 


ADMIRALTY.  309 

I  would  ask  you  to  look  at  a  case  in  2  Curtis's  C. 
C.  R.  427,1  where  you  will  see  some  distinctions 
pointed  out  between  the  law  the  Admiralty  can 
administer,  the  sources  to  which  it  can  go  for  law, 
and  the  sources  to  which  other  courts  can  resort; 
and  perhai)s  it  is  as  well  for  me  to  refer  you  to  that 
without  further  observation,  as  you  will  see  there 
the  explanation  which  I  would  desire  to  make.^ 

The  last  source  of  admiralty  law  in  the  courts  of 
the  United  States  is  of  course  perfectly  imperative, 
and  that  is  acts  of  Congress. 

A  very  considerable  number  of  subjects  are  regu- 
lated by  positive  laws  of  Congress,  and,  where 
such  laws  exist,  of  course  they  must  govern,  no 
matter  what  may  be  the  law  elsewhere.  But,  in 
general,  it  will  be  found  that  there  is  great  con- 
formity, so  far  as  I  know,  almost  absolute  conform- 
ity, between  the  regulations  of  Congress  and  the 
general  principles  of  the  admiralty  law  adminis- 
tered   in   the  courts  of   other   civilized  countries; 

extends  the  judicial  power  to  "  all  cases  of  admiralty  and  maritime 
jurisdiction."  The  interpretation  of  tliese  expressions  is  a  judicial 
question ;  and  hence  the  Supreme  Court  of  the  United  States,  assum- 
ing the  general  maritime  law  to  be  the  basis  of  the  system,  as  it  was 
familiar  to  our  lawyers  and  statesmen  at  the  adoption  of  the  Consti- 
tution, has  always  inquired,  in  particular  cases,  what  has  been  re- 
ceived as  law  in  the  maritime  usages  of  this  country,  or  has  been 
enacted  by  Congress.  Tpon  any  particular  question,  therefore,  when 
it  has  been  ascertained  that  a  case  was,  at  the  adoption  of  the  Con- 
stitution, a  subject  of  admiralty  jurisdiction  according  to  the  gen- 
eral maritiuie  law  of  the  world,  that  law  becomes  a  source  of  the 
jurisprudence  which  is  to  be  administered.  See  this  subject  learnedly 
discussed  in  The  Lottawamia,  21  Wallace,  5.58. 

1  The  Larch. 

2  [The  decisions  of  the  Colonial  admiralty  courts  are  of  authority. 
See  Cunningham  v.  Hall,  1  Cliff.  43.] 


310      JUKISDICTION,    PRACTICE,    AND   JURISPRUDENCE. 

and  the  tendency  in  modern  times  and  of  late 
years  has  been  liberal.  As  one  amongst  the  many 
instances  to  which  I  might  refer,  1  will  mention 
the  act  I  have  already  mentioned,  which  limits  the 
liability  of  owners  of  vessels  in  conformity  with 
the  ancient  and  well-settled  admiralty  law,  and  in 
ojDposition  to  the  common  law. 

Among  the  peculiarities  of  the  jurisprudence  of 
the  admiralty  is  the  fact  that  there  is  no  statute  of 
limitations  which,  jjroprio  vigore,  applies  to  a  suit 
in  the  admiralty.  Of  course,  I  do  not  mean  to  be 
understood  that  there  is  no  limitation  of  actions. 
There  is;  but  the  limitation  is  not  derived  from 
any  positive  law.  The  better  opinion  is  that  courts 
of  admiralty  act,  as  to  some  extent  courts  of  equity 
do,  by  analogy  to  the  different  statutes  of  limita- 
tions, and  that  the  general  principle  upon  which 
they  act  is,  that  they  will  not  enforce  a  stale 
claim ;  that  where  a  party,  knowing  his  rights,  has 
laid  by  for  an  unreasonable  length  of  time,  and  the 
court  can  see  that  the  condition  of  the  other  party 
has  been  changed,  and  changed  for  the  worse,  by 
reason  of  this  delay,  then  the  court  will  not  enforce 
the  claim.  And  sometimes  this  principle  is  applied 
with  considerable  strictness,  especially  where  a 
bona  fide  purchaser  has  intervened,  and  where  his 
rights  will  be  sacrificed  by  the  enforcement  of  the 
claim.  The  subject  is  a  good  deal  discussed  in  the 
case  of  The  Sarah  Ann,  2  Sumner,  206.^ 

In  speaking  of  the  modes  of  proof  in  the  Circuit 
Courts,  I  believe  I  have  said  nearly  all  that  is 
necessary  upon  the  same  subject  as  applicable  to 

1  [See  Southard  \.  Bradi/,  3G  Fed.  Rep.  560.] 


ADMIKALTY.  311 

District  Courts.  To  a  great  extent  the  modes  of 
proof  are  the  same,  and  the  rules  of  evidence  are 
the  same.  There  is,  however,  this  distinction,  that 
the  Circuit  Court  [of  Appeals]  as  well  as  the 
Supreme  Court,  is  an  appellate  court  from  the 
District  Court  ^  in  admiralty  cases,  and,  being  an 
appellate  court,  it  has  been  thought  necessary  to 
put  the  evidence  taken  in  the  District  Court  upon 
the  record,  so  that  it  should  go  up  as  part  of  the 
record,  instead  of  having  the  witnesses  re-examined 
in  the  court  above ;  and  when  I  was  speaking  of  the 
modes  of  proof  in  the  Circuit  Court,  I  went  over 
in  detail  both  the  statutes  and  decisions  on  that 
subject.  In  the  District  Court,  it  is  most  usual  in 
practice  to  examine  the  witnesses  orally.  As  I 
have  said,  they  are  courts  which  proceed  with 
rapidity,  and  their  proceedings  are  simple,  as  well 
as  rapid.  They  must  necessarily  be  so  in  order  to 
do  justice  in  a  great  class  of  cases,  because,  if  a 
dispute  occurs  between  the  seamen  and  owners  of  a 
ship,  or  between  the  shippers  and  ship-owners,  and 
in  a  variety  of  other  cases,  it  is  of  the  utmost  impor- 
tance that  a  speedy  decision  should  be  reached, 
and,  generally  speaking,  the  evidence  would  dis- 
appear if  it  were  not  adduced  and  used  promptly 
after  the  suit  was  brought.  The  usual  practice, 
therefore,  in  the  District  Courts,  is  to  examine  the 
witnesses   orally.     They  may  be   examined  before 

1  [Since  the  Act  of  March  3,  1891,  the  appeal  in  admiralty  cases 
lies  not  to  the  Circuit  Court,  but  to  the  Circuit  Court  of  Ajipeals. 
See,  on  this  subject,  ante,  pp.  74,  76-78.  The  whole  case  is  reviewable 
in  the  Circuit  Court  of  Appeals,  — facts  as  well  as  law.  llie  State  of 
California,  49  Fed.  Rep.  172;   The  Havilah,  48  Fed.  Eep.  684.] 


312      JURISDICTION,   PRACTICE,   AND   JURISPRUDENCE. 

a  commissioner  if  they  are  about  to  leave  the 
country,  so  that  their  evidence  cannot  be  adduced 
in  court  orally  at  the  trial ;  but  excepting  these  de 
bene  esse  cases,  it  is  almost  the  universal  practice 
to  examine  the  witnesses  orally  in  the  presence  of 
the  judge.  Then,  if  it  is  supposed  there  will  be  an 
appeal,  there  is  a  provision  in  the  Act  of  Congress 
which  I  have  read  to  you  in  speaking  of  the  Circuit 
Courts,  under  which  the  testimony  of  a  witness 
may  be  taken  down  by  the  Clerk ;  and  that  may 
be  certified,  if  there  should  be  an  appeal  to  the 
Circuit  Court  [of  Appeals],  and  even  to  the  Supreme 
Court,  if  there  is  an  appeal  there,  with  the  same 
effect  as  if  the  witness  had  given  a  deposition 
before  an  examiner.  ^ 

What  I  have  now  said  applies  altogether  to 
instance  causes.  The  subject  of  prize  jurisdiction 
draws  into  that  court  the  great  body  of  public 
international  law.  "Whatever  public  international 
law,  —  that  is,  laws  regulating  the  rights  and  duties 
of  nations  as  between  themselves,  —  whatever  public 
international  law  exists,  that  court  has  occasion 
to  administer  in  prize  causes,  and  of  course  it 
resorts  to  the  proper  sources  to  learn  what  that 
law  is.  The  approved  writers  on  the  subject,  the 
decisions  which  have  been  made  in  different 
countries,  chiefly  in  England  and  in  America,  and 
any  evidence  by  means  of  treaties  or  conventions 
which  tends  to  show  what  principles,  by  general 
consent  of  nations,  have  been  agreed  to  and  settled, 
these  courts  have  occasion  to  consider  and  apply. 
Of   course,    it   is    not   within   the   scope    of   these 

1  [Sec  on  this  subject  The  PhiJadelphian,  60  Fed.  Eep.  423.] 


ADMIRALTY.  313 

Lectures  for  me  to  say  any  more  than  to  intimate 
to  you  what  the  sources  are  to  which  these  courts 
must  resort,  and  to  which  the  practitioners  in  these 
courts  must  resort,  in  order  to  ascertain  what  are 
the  proper  principles  to  be  applied  in  prize  cases. 
It  is  a  great  subject,  as  you  know. 

There  is  one  peculiarity  in  the  mode  of  proceed- 
ing in  prize  cases,  and  that  is,  that  the  evidence  in 
the  first  instance  all  comes  from  the  papers  and 
crew  of  the  captured  ship.  You  will  find  this 
explained,  as  well  as  the  mode  of  proceeding  con- 
nected with  this  rule,  in  2  Wheaton,  76,  ^  and  6 
Wheaton,  l.^  Accordingly,  it  is  the  duty  of  the 
captors,  when  they  come  into  port,  to  bring  into 
court  all  the  ship's  papers,  of  every  kind,  under  the 
proper  solemnities  to  prove  that  they  have  brought 
them  all,  and  that  they  are  genuine  papers  taken 
from  the  ship.  They  are  deposited  in  court,  and 
then  the  officers  and  crew  of  the  captured  ship  are 
examined  upon  interrogatories,  and  those  interroga- 
tories are  settled  in  a  particular  form.  If  you  have 
any  curiosity  to  see  a  set  of  them  framed  by  a  very 
eminent  judge,  you  will  find  it  in  the  Appendix  to 
the  second  volume  of  Sprague's  Reports.  Judge 
Sprague,  at  the  commencement  of  hostilities  in  the 
late  civil  war,  when  this  prize  act  to  which  I  have 
referred  was  passed,  was  required,  in  common  with 
all  other  District  Judges,  to  settle  these  interroga- 
tories, in  preparatorio  as  they  are  called,  which  are 
to  be  administered  to  the  officers  and  crew  of  a 
captured  ship;  and  a  set  of  them  is  found  in  that 
Appendix. 

i  The  Dos  Hermanos.  2  j'/jg  Amiable  Isabella. 


314      JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

The  case  being  thus  prepared,  —  the  preparation 
consisting  of  the  papers  found  on  board  the  prize 
and  the  evidence  of  the  officers  and  crew  of  the 
prize,  taken  in  the  manner  I  have  mentioned,  —  it 
comes  before  the  court;  and  if  the  court  finds  there 
are  difficulties  in  the  case,  that  there  are  doubts 
concerning  matters  of  fact,  they  then  make  an 
order  for  what  is  called  further  proof,  and  under 
that  order  such  further  evidence  as  is  indicated  by 
it  is  taken;  for  the  order  is  always  specific  as  to 
the  topics  upon  which  evidence  may  be  taken.  The 
case  is  not  opened  at  large,  as  it  might  be  in  pro- 
ceedings on  the  civil  side  of  the  court,  but  the 
court,  finding  doubts  upon  some  particular  points, 
indicates  that  further  evidence  besides  that  of  the 
officers  and  crew,  or  even  a  re-examination  of 
them,  may  be  had  upon  these  particular  points; 
and  this  is  called  an  order  for  further  proof.  And 
this  may  be  made,  not  merely,  in  the  first  instance, 
by  the  Circuit  Court  or  the  District  Court,  but  it 
may  be  made  even  by  the  Supreme  Court,  if,  upon 
an  examination  of  the  case,  as  it  comes  before  them, 
they  find  it  needful. 

I  desire  to  say  a  few  words  upon  the  subject  of 
pleadings  in  the  Admiralty.  They  consist  of  a 
libel,  as  it  is  called,  which  is  a  petition  setting 
forth  the  cause  of  action  in  distinct  articles;  an 
exception  to  the  libel,  if  the  respondent  thinks  that 
the  libel  does  not  show  a  cause  of  action,  — it  is  in 
the  nature  of  a  demurrer,  but  it  is  called  an  excep- 
tion, because  these  proceedings  are  according  to 
the  course  of  the  civil  law,  and  "exception"  is  the 
name    of  what  we  call  in  the  common  law  or  in 


ADMIRALTY.  315 

equity  a  demurrer;  and  an  answer.  The  libel,  the 
exception,  and  the  answer  cover  the  pleadings  in 
the  Admiralty.  They  are  simple  and  easily  under- 
stood, but  a  pretty  strict  observance  of  such  rules 
as  do  exist  is  required.  There  are  no  technical 
rules  of  variance  as  there  are  at  the  common  law, 
but  yet  the  allegations  are  required  to  be  precise 
and  sufficiently  full,  and  the  proof  must  correspond 
with  the  allegations.  The  rules  upon  this  subject 
you  will  find  laid  down  in  the  case  of  3IcKinlay  v. 
Morrish,  21  Howard,  343;  The  Comma7ider-in- Chief, 
1  Wallace,  43;  and  in  the  rules  framed  by  the 
Supreme  Court  for  the  government  of  admiralty 
practice. 

The  admiralty  courts  are  extremely  liberal  in 
allowing  amendments.  ^  They  may  be  allowed,  not 
merely  by  the  District  Court,  but  by  the  Circuit 
Court  [of  Appeals]  on  appeal,  and  even  by  the 
Supreme  Court ;  though  of  course  it  is  very  desir- 
able not  to  be  in  a  position  to  be  obliged  to  ask  for 
leave  to  amend,  because  it  is  generally  attended 
with  inconvenience  and  delay,  and  sometimes  with 
a  good  deal  of  expense.  The  practice  of  these 
courts  is  regulated  partly  by  the  rules  established 
by  the  Supreme  Court  of  the  United  States,  under 
the  Act  of  August  23,  1842, ^  which  has  been 
repeatedly  referred  to  in  these  Lectures,  and  partly 
by  the   rules   made   by  each   District   Court;  and 

1  [See  The  Mahey,  10  "Wall.  419;  The  Charles  Morgan,  115  U.  S. 
69.] 

2  [See  The  Corsair,  145  U.  S.  335.  These  rules  will  be  found  in 
an  appendix  to  Benedict's  Admiralty  Practice,  the  third  edition  of 
which  was  published  in  1S94.] 


316       JURISDICTION,    PRACTICE,   AND    JURISPRUDENCE. 

when  neither  the  rules  of  the  Supreme  Court  nor 
the  rules  made  by  the  particular  District  Court  are 
sufficient  to  solve  a  difficulty  which  arises  in  prac- 
tice, then  the  judges  recur  to  the  writers  on  the 
subject  of  admiralty  practice  whose  works  are 
received  as  authority,  and,  to  some  extent,  to  the 
decisions  which  have  been  made  and  reported  in 
these  courts.  There  are  several  books  of  authority 
on  this  subject,  one  of  which  is  Clerke's  Praxis; 
another  is  Taylor's  Maritime  Law.  We  have  also 
Dunlap's  Admiralty  Practice,  —  the  work  of  a 
member  of  the  bar  of  the  county  of  Suffolk,  who 
was  formerly  District  Attorney,  and  had  a  good 
deal  of  knowledge  of  practice  in  these  courts,  —  and 
Conkling's  Admiralty  Practice.  There  are  also 
several  books  written  by  gentlemen  in  New  York 
which  are  very  familiar  to  you,  no  doubt,  or  with 
which  you  can  make  yourselves  familiar  (with  their 
names  at  lenst)  by  looking  at  them  on  the  shelves.^ 

In  case  of  the  death  of  the  libellant  or  defendant 
in  the  admiralty,  there  is  no  Act  of  Congress  which 
is  precisely  applicable,  as  there  is  in  the  case  of 
the  death  of  a  party  to  a  suit  at  law  or  in  equity, 
but  courts  of  admiralty  have  acted  from  analogy  to 
that  Act  of  Congress,  and  found  no  difficulty  in 
allowing  the  personal  representative  of  the  deceased 
party  to  appear  and  take  upon  himself  either  the 
prosecution  or  the  defence  of  the  suit.  This  sub- 
ject you  will  find  discussed  in  the  case  of  Tlie 
Oetavia^  1  Mason,  149,  and  in  Nevitt  v.  Clarke  in 
Olcott's  Admiralty  Reports,  316. 

1  [See  Benedict's  Admiralty  Practice,  Henry's  Admiralty  Juris- 
diction and  Procedure,  and  Foster's  Federal  Practice.] 


INDEX. 


ABSENT  DEFENDANTS,  125-127,  135,  136,  137,  141,  note. 

ACCOUNTING, 

in  patent  suits,  85. 

ACCOUNTS, 

between  part-owners  of  ships,  303. 

ADMINISTRATORS, 

removal  of  suits  by  or  against,  215. 
suits  by,  138. 

ADMIRALTY, 

amendments  in,  315. 

appeal  in,  67,  71,  78. 

bottomry  bonds,  289. 

captures  by  foreign  vessels,  301. 

collisions,  298. 

consortship,  292. 

contracts  within  Jurisdiction  of,  286,  et  seq. 

contracts  not  within  jurisdiction  of,  303,  306,  note  1. 

death  by  marine  tort,  damages  for,  299,  note  1. 

"ebb  and  flow"  as  limit  of  jurisdiction,  284. 

English  court  of,  283,  note  2. 

evidence  in,  254,  260,  311. 

final  decree  in,  95. 

insurance  policies,  290. 

jurisdiction  in,  282,  et  seq.,  294,  et  seq. 

concurrent  with  State  courts,  288,  note  1,  297,  note  2. 

of  circuit  court  of  appeals,  74-78. 

of  supreme  court,  67,  78,  243. 

limited  by  locaUty,  284,  285,  297,  300,  note  1. 

limited  by  subject-matter,  286,  303. 
law,  sources  of,  307,  et  seq.,  293  note. 


318  INDEX. 

ADMIRALTY  —con^wwed 

liens  in,  274,  275,  289. 

limitations,  statute  of,  in,  310. 

pleadings  in,  314, 

possessory  suits,  295. 

practice  iu,  315-316. 

ransom,  292. 

respondentia  bonds,  290. 

revenue  seizures,  301. 

rules  of  decision  in,  243,  293,  note. 

salvage,  291. 

stevedore's  services,  286. 

surveys  in,  292. 
AFFIDAVITS, 

as  to  value  of  the  thing  in  controversy,  92. 

in  removal  cases,  204. 

on  motion  for  preliminary  injunction,  84,  171-172. 
AFFREIGHTMENT,  287. 
ALIENS, 

suits  by  and  against,  131-133,  154,  179-180. 
AMBASSADORS, 

cases  affecting,  6,  13,  272. 

AJ^IEXDMENT, 
eleventh,  16. 

fourteenth,  178,  195,  282. 
sixth,  112. 
AMOUNT  IN   CONTROVERSY, 

counter-claim,  as  part  of,  91,  note,  211. 
how  determined,  88  et  seq.,  120,  121,  122. 
in  suits  in  rem,  91. 

jurisdiction  of  circuit  courts  of  appeal,  not  limited  by, 
74,  note  1. 

APPEAL, 

allowance  of  by  judge,  99. 

amount  of  claim,  75,  88  et  scq. 

claimed  in  term  time,  or  afterward,  99-100. 

distinguished  from  writ  of  error,  08. 

from  the  court  of  claims,  104. 


INDEX.  319 

APPEAL  —  continued. 

from  the  territorial  courts,  79,  88,  105-106. 

in  admiralty  cases,  74. 

in  bankruptcy  cases,  102,  181. 

in  cases  involving  a  Federal  question,  25,  46,  68. 

in  cases  of  jurisdiction,  68,  69,  70. 

in  capital  cases,  68. 

in  cases  of  infamous  crime,  68,  72. 

in  criminal  cases,  68,  74. 

in  cases  of  diverse  citizenship,  74. 

in  patent  cases,  74. 

in  removal  cases,  198,  199. 

in  revenue  cases,  74,  177,  note  1. 

parties  to  an,  98. 

practice  in  entering.  99,  103. 

right  to  an,  how  enforced,  99. 

when  must  be  taken,  87. 

(See  Rfxord,  Securities,  State  Court.) 
APPELLATE  JURISDICTION  OF  CIRCUIT  COURT  OF 
APPEALS, 
generally,  73. 

in  habeas  corpus  cases,  217,  221-222. 
APPELLATE  JURISDICTION  OF  SUPREME  COURT, 
in  reference  to  State  courts,  23  et  seq. 
in  reference  to  circuit  and  district  courts,  67,  87. 
in  habeas  corpus  cases,  219,  223. 
ASSIGNMENT  OF  ERRORS,  56. 

ASSIGNORS,  when  they  may  sue  in  circuit  court,  156  et  seq. 
on  what  instruments,  157. 
burden  of  proof  in  such  cases,  159. 
who  are,  156,  note  2. 
ATTACHMENT, 

jurisdiction  acquired  by,  123,  125,  126. 
not  dissolved  by  removal  of  suit,  188. 

B. 

BANKRUPTCY  ACT,  282. 
BANKRUPTCY  CASES, 
appeals  in,  102,  181. 


320  INDEX. 

BANKRUPTCY   CASES  —  continued. 

proceedings  in  State  courts,  affecting,  may  be  enjoined  by 

Federal  courts,  173,  note  3. 
supervisory  jurisdiction  of  circuit  court,  102,  note  1. 

BANKS,  NATIONAL, 

deemed  citizens  of  States  where  they  are  situated,  117. 
removal  of  suits  by  or  against  receivers  of,  213. 
suits  by  receivers  of,  117,  note  1,  281,  note  3. 
where  suable,  117,  164. 
winding  up,  165. 

BILL, 

leave  to  file,  in  supreme  court,  21. 
BOTTOMRY  AND  RESPONDENTIA  BONDS,  289,  290. 

BONDS, 

in  removal  cases,  196,  202. 

of  public  officers,  suits  upon,  139. 
BRIEF, 

by  Judge  Curtis,  in  regard   to  jurisdiction   of  supreme 
court,  59. 

BURDEN  OF  PROOF, 

in  reference  to  choses  in  action,  159. 


C. 

CAPITAL  CASES, 

appeals  in,  68,  72. 

jurisdiction  of,  280,  note  2. 

procedure  in,  266,  267,  note  1. 
CAPTURE  ON  THE  HIGH  SEAS,  299,  301. 
"CASE," 

definition  of,  11. 

CASE  OF  MURDOCK  v.  CITY  OF  MEMPHIS,  46  et  seq. 
CERTIORARI,  WRIT  OF, 

issued  by  the  supreme  court,  75-78,  104. 

by  the  circuit  court  in  removal  cases,  198. 
CHALLENGE  OF  JURORS, 
in  criminal  cases,  266. 


INDEX.  321 

CHOSE  IN  ACTION,  116,  117,  155,  159. 

CIRCUIT  COURTS, 

amouut  of  claim,  115,  120. 

appeals  to,  abolished,  67. 

caunot  interfere  with  State  courts,  174,  197-198. 

except  in  bankruptcy  cases,  173,  note  3. 
construction  of,  65,  107. 
costs  in,  122. 
history  of,  109,  110. 
injunctions  granted  by,  171. 
judges  of,  65-66,  127-128. 
jurisdiction  of, 

acquired  by  attachment,  123,  124. 
in  bankruptcy  cases,  102,  note  1,  181. 
in  case  of  alien  defendants,  131-133,  154,  180. 
in  civil  cases,  115  et  seq. 
in  criminal  cases,  111-115,  118. 
in  equity  cases,  169,  170,  171. 
in  habeas  corpus  cases,  217,  222-225. 
in  patent  cases,  161,  162. 
on  account  of  subject-matter,  160  et  seq. 
on  account  of  parties  to  suit,  116,  118,  129  et  seq. 
not  defeated  after  once  attaching,  139. 
new  trials  granted  by,  248-249. 
non-suits  in,  249. 
(See  State  Courts,  Process,  Revenue  Cases.) 
CIRCUIT  COURTS  OF  APPEAL, 

appeals  and  writs  of  error  to,  71,  73  et  seq.,  198,  199. 

construction  of,  66,  67. 

habeas  corpus  jurisdiction  of,  217,  221. 

jurisdiction  of  not  limited  by  amount  in  controversy,  74, 

note  1. 
may  certify  questions  of  law  to  supreme  court,  74,  76. 
CIRCUIT  JUDGES,  65-67,  128. 
CITATION,  56. 
CITIZEN, 

defined,  137,  138. 
of  a  territory,  right  to  sue,  138. 

21 


322  INDEX. 

CITIZENSHIP, 

changes  in,  as  affecting  jurisdiction,  140. 

change  of,  144,  note  1. 

distinguished  from  residence,  153,  200. 

diverse,  116,  118. 

how  averred,  142, 144,  note. 

how  traversed,  143. 

in  removal  cases,  214,  215. 

must  appear  on  the  record,  141. 

(See  Corporations.) 
CIVIL   RIGHTS, 

offences  against,  118,  178,  282. 
removal  of  cases  touching,  195. 

CLAIMS, 

court  of,  104,  105. 

against  the  United  States,  181,  note  3,  281. 

COLLISIONS, 

locality  of,  297,  note  2. 
subject  to  admiralty  law,  298. 

COMITY, 

in  cases  of  removal,  197-198,  203. 
COMMERCIAL   LAW   IN   UNITED   STATES   COURTS, 

233. 
COMMISSIONS   TO   TAKE   TESTIMONY,  263. 

CONDUIT, 

suits  by  or  against  persons  acting  as,  139. 
CONFLICT  OF  JURISDICTION  IN  REMOVAL  CASES, 
197,  198,  203. 

CONGRESS, 

duty  of,  to  confer  jurisdiction,  134. 

CONSORTSIIIP,  292. 

CONSTITUTION    OF   A   STATE, 

how  construed,  232. 
CONSTITUTION    OF   THE   UNITED   STATES, 

appeals  in  cases  relating  to,  24,  68,  72. 

cases  arising  under,  when  removable,  211. 

construction  of,  7,  8,  9,  11,  13-17,  24,  134. 


INDEX.  323 

CONSTITUTION  OF  THE  UNITED  STATED  — continued. 

jurisdiction  conferred  upon  Federal  Courts  by,  5,  24,  112, 
134. 

questions  arising  under,  31,  68. 

State  statute  conflicting  with,  24. 

supreme  court  establislied  by,  4  et  seq.,  9. 
CONSTRUCTION, 

of  Act  of  1887-1888,  119,  184,  185. 

of  jurisdiction  given  by  Congress,  134. 

of  State  statutes  by  Federal  courts,  230  et  seq. 

of  United  States  Constitution,  7,  8,  9,  11,  13-17,  24,  134. 

of  United  States  statutes,  68. 
CONSULS   AND   VICE-CONSULS, 

suits  by  or  against,  9,  note  1,  272,  274,  282. 
CONTEMPT, 

punishment  for,  175. 
CONTRACT   LABOR   LAW,  181,  note  3,  281. 
CONTRACTS, 

impairing  the  obligation  of,  235. 

in  respect  to  patents,  162,  note  4,  276,  277. 

maritime,  286  et  seq. 

of  affreightment,  287. 

specific  performance  of,  not  within  admiralty  jurisdiction, 

305. 

to  build  vessels,  303. 
COPIES, 

for  appeal,  103. 
COPYRIGHT   CASES,  162,  276. 
CORPORATIONS, 

adopted  by  foreign  state,  149,  note  1. 

alien,  1.54. 

citizenship  of,  145  et  seq. 

foreign,  148,  note  1,  149,  152. 

incorporated  in  two  States,  150,  151. 

jurisdiction  over,  155. 

organized  under  United  States  law,  161,  214,  note  2. 

property  of,  in  different  States,  155. 

removal  of  suits  by,  185,  214,  note  2,  215. 

residence  of.  152. 


324  INDEX. 

CORPORATIONS  —  continued. 

State  laws,  as  affecting  suits  against,  125, 

stocks  and  bonds  issued  by,  150. 

suits  by  and  against,  149,  note  1,  152,  154  et  seq. 
COSTS, 

in  removal  cases,  196,  202. 

security  for,  on  appeal  to  supreme  court,  103. 

when  not  recoverable  by  plaintiff,  122. 

COUNTER-CLAIM, 

whether  reckoned  as  part  of  amount  in  controversy,  91, 
note  1,  211. 

CRIMES, 

against  laws  of  United  States,  114,  130,  280. 
in  what  district  committed,  114,  note  1,  267,  note, 
infamous,  68,  72. 
CRIMINAL  CASES, 
appeals  in,  68,  72,  74. 
evidence  in,  269. 
jurisdiction  of,  74,  130,  280. 
pleadings  in,  267. 
procedure  in,  266,  269. 

CROSS-EXAMINATION,  259. 

D. 

DAMAGES, 

in  patent  suits,  85. 

suits  by  assignee  of  claims  for,  158. 

DEATH   OF   PARTIES, 

pendente  lite,  effect  of,  139,  215. 
DECISIONS   BY   STATE   COURTS,  230  e<  se?.,  235. 

DECREE, 

form  of,  in  circuit  court  of  appeals,  85,  86. 
in  admiralty,  95. 
in  equity.  96. 
interlocutory,  83,  84. 

DEFENDANTS, 

absent,  125-127,  135,  137,  141,  note  1. 

formal,  or  not,  137,  194,  note  1. 

local  influence  or  prejudice  as  between,  205. 


INDEX.  325 

DEPOSITIONS,  262-265. 
DIMINUTION   OF   RECORD,  103-104. 
DIPLOMATIC   RELATIONS, 

cases  involving,  180. 

DISCOVERY, 

at  common  law,  265. 
DISMISSAL, 

for  want  of  jurisdiction,  34. 
DISTRESS    WARRANTS    IN    THE    CIRCUIT    COURT, 

166, 167. 
DISTRICT  COURTS, 

appeals  from,  67,  74. 

appeals  from  iu  bankruptcy  cases,  102. 

construction  of,  65,  109. 

jurisdiction  of,  130,  131,  274,  279  et  seq. 
in  bankruptcy  cases,  102. 
in  habeas  corpus  cases,  217,  222,  224. 
{See  Admiralty,  Revenue.) 
DISTRICT   JUDGES,  65-67,  128. 
DISTRICTS, 

how  created,  109. 

in  what,  suit  must  be  brought,  118, 122,  123, 124, 126, 153. 

number  of,  279. 
DIVERSE   CITIZENSHIP, 

ground  of  jurisdiction,  116,  118. 

ground  of  removal,  189,  199. 
DOCKET, 

original,  in  supreme  court,  21. 
DOCUxAIENTS, 

production  of,  ordered  by  the  court,  265. 
DUTIES, 

suits  to  collect,  163. 


E. 

EBB   AND   FLOW, 

as  original  limit  of  admiralty  jurisdiction,  284. 
EQUITY, 

appeal  in,  to  supreme  court,  99. 


326  INDEX. 

EQUITY  —  continued. 
evidence  iu,  2G0. 
final  decree  in,  95. 

jurisdiction  of  Federal  courts  in,  169. 
jurisprudence,  240,  242. 
pleading  and  practice  in,  247. 
rules  of  decision  in,  240  et  seq. 
service  of  process  in,  135,  137. 
system  of,  in  Federal  Courts,  240  et  seq.,  245,  note  1. 

EQUITY   AND   LAW, 
distinction  betveeen,  12. 

ERROR.     (See  Writ  of  Error.) 

ERRORS, 

assignment  of,  56. 

EVIDENCE, 

in  admiralty,  254,  260,  311. 

in  common  law  cases,  258. 

in  criminal  cases,  269  et  seq. 

iu  equity,  254,  260. 

in  prize  cases,  313. 

in  United  States  courts,  253  et  seq. 

proceedings  to  compel  the  production  of,  265. 
(See  Witness,  Proof.) 
EX  PARTE  INJUNCTIONS,  171,  172. 
EXECUTION, 

staying,  251. 
EXECUTORS, 

removal  of  suits  by,  215. 

suits  by,  138. 

F. 

FEDERAL   COURTS, 

appeals  from,  64  et  seq. 
construction  of,  64-67,  107-110. 
evidence  in,  253,  254,  260,  209,  311. 
interference  of  with  State  courts,  173,  174. 
interference  with,  by  State  courts,  174. 


INDEX.  327 

FEDERAL   COURTS  —  continued. 

may  enjoin  State  courts  in  bankruptcy  cases,  173,  note  3. 
{See  Supreme  Court,  Circuit  Court  of  Appeals,  Circuit 
Court,  District  Court.) 

FEDERAL  QUESTION,  26  et  seq.,  47  et  seq.,  72,  73. 

how  set  up,  34,  35,  54,  56-58. 

must  be  set  up  in  the  court  below,  56,  57,  73. 

must  be  decided  against  the  party  setting  it  up,  to  give 
jurisdiction,  32,  note  2. 

what  is  a,  26,  31,  32. 
FICTIO, 

in  common  law  of  England,  147. 

in  Roman  law,  146. 

FINAL  DECREES, 
in  admiralty,  95. 
in  equity,  94,  note  1,  96. 

FINAL  JUDGMENTS,  28,  93,  94,  note  1. 

FORCE   BILL,  195,  note  3. 

FOREIGN  SOVEREIGN, 

suits  by,  16,  17. 

FOREIGN  STATE, 

meaning  of,  in  the  Eleventh  Amendment,  16. 
suits  by,  16,  17. 

FORFEITURES, 

jurisdiction  to  recover,  182,  note,  274,  281,  301. 

FORFEITURES  OF  VESSELS,  301. 
FRAUDS  LN  NATURALIZATION,  179. 

G. 

GENERAL   AVERAGE, 

in  admiralty,  290. 

GOVERNMENT   OFFICERS, 

suits  against,  195,  196. 

suits  by,  117,  note  1,  279,  281. 

summary  proceedings  against,  165,  166. 
GRAND  JURIES,  266. 


328  INDEX. 

GUARDIANS   AND  TRUSTEES, 
removal  of  suits  by,  215. 
suits  by,  138. 

H. 

HABEAS   CORPUS, 

appeal  in  cases  of,  219  et  seq. 

in  cases  of  alien  defendants,  180. 

jurisdiction  of  supreme  court  in  original  cases  of,  224,  225, 

in  appellate  cases,  218,  219,  223. 
jurisdiction  of   circuit  courts  of  appeal  in  cases  of,  217, 

221,  222. 
jurisdiction  of  circuit  courts  in  cases  of,  217,  222-225. 
jurisdiction  of  district  courts  in  cases  of,  217,  223-225. 
money  limit  excludes  cases  of,  89,  208,  222. 
suits  of,  are  not  removable,  208. 
what  questions  are  open  in  cases  of,  226. 
writs  of, 

how  returnable,  218. 
in  what  cases  issued,  180,  218. 
to  State  courts,  223-225. 

not  to  be  used  to  perform  the  office  of  a  writ  of  error, 
226. 
HIGH  COURT   OF  CHANCERY  IN   ENGLAND, 

equity  rules  of,  followed,  243,  247. 
"HIGHEST   COURT," 

meaning  of,  in  statute,  30. 

I. 

IMPORTS, 

suits  relating  to  duties  on,  163,  177,  note. 

INDIAN   TERRITORY, 

appeals  from,  79,  note  2,  88. 

INDICTMENTS, 

defects  in,  2G8. 
INFAMOUS   CRIMES,  68,  72. 
INHABITANCY  OF   CORPORATIONS,  152. 
INHABITANT,  116,  note,  153. 


INDEX.  .  329 

INJUNCTIONS, 

appeals  in  cases  of ,  82. 

by  circuit  and  district  courts,  170-172. 

Ex  parte,  171,  172. 

form  of  decree  in  cases  of  appeals  from,  85,  86. 

preliminary,  82-85,  171. 

restraining  orders  equivalent  to,  172-173. 

to  stay  proceedings  in  State  courts,  173,  note  3,  174. 

INSTRUCTION    TO  JURY, 

■when  equal  to  non-suit,  250. 
INSURANCE   POLICIES, 

are  subjects  of  admiralty  jui'isdiction,  290. 
INTERNAL   REVENUE, 

suits  iu  I'egard  to,  163,  176-177. 
INTERSTATE   COMMERCE  ACT,  106,  note  1, 181,  note  3. 
INTIMIDATION   OF  JURORS,  179. 


J. 

JETTISON, 

is  a  subject  of  admii'alty  jurisdiction,  290. 
JUDGMENTS, 

final,  28,  93,  94,  note  1. 
JUDICIAL  POWER  OF  UNITED  STATES, 

extent  of,  13. 

is  derived  from  the  Constitution,  5. 

over  State  courts,  24,  26,  173. 
JUDICIARY  ACT  AND  AMENDMENTS  THERETO,  26, 
64,  107,  112,  119,  131,  175,  183. 

meaning  of  some  words  in,  28  et  seq. 
JURIES, 

formation  of,  in  Federal  courts,  266. 

in  criminal  cases,  266. 

(See  Jury.) 
JURISDICTION, 

acquired  by  attachment,  125. 

affected  by  change  of  citizenship,  139-140. 

by  death  of  party,  139-140. 

certificate  of  question  of,  69. 


330  INDEX. 

JURISDICTION  —  con^mwec?. 

concurrent,  of  State  and  United  States  courts,  115,  271, 

288,  note  1. 
conflict  of,  in  removal  cases,  197,  198,  203, 
determined  by  amount  in  contioversy,  88  et  seq.,  120,  121. 
distribution  of,  in  the  United  States  courts,  7. 
exclusive  in  United  States  courts,  116  et  seq.,  160  et  seq., 

282,  288,  note  1,  297,  note  2. 
in  case  of  executors,  receivers,  &c.,  138. 
of  Federal  courts  generally,  124,  note  1,  129. 
of  State  courts,  limits  of,  174,  271. 

concurrent  with  Federal  courts,  115,  274,  280,  note  1, 
297,  note  2. 
waiver  of,  123,  124. 

writ  of  error  to  Supreme  Court  on  questions  of,  69,  70. 
(See  Supreme  Court,  Circuit  Courts  of  Appeal,  Circuit 
Court,  District  Court,  State  Courts,  Admiralty, 
Equity,  Criminal  Cases,  Prize,  Trusts.) 
JURORS,  I 
JURY,       I 

challenge  of,  266. 
instructions  to,  250. 
intimidation  of,  179. 
selection  of,  266. 
JURY  TRIALS, 

guaranteed  in  criminal  cases,  112,    ' 

L. 

LAND, 

claimed  under  conflicting  grants  of  different  States,  116, 
120,  189,  194. 
LAW  AND  EQUITY, 

distinction  between,  12. 

enforced  in  supreme  court,  19. 
LAWS  OF  THE  UNITED  STATES, 

questions  arising  under,  31,  68. 

questions  under,  when  removable,  211. 
LIABILITY, 

of  ship-owner,  290,  296,  297,  note  1. 


INDEX.  331 

LIENS, 

for  wages,  275. 

maritime,  274,  289. 
LBIITATION, 

of  ship-owner's  liability,  296-297,  310. 
LIMITATIONS,    STATUTE   OF, 

ill  admiralty,  310. 
LOCAL  LAW, 

in  Federal  courts,  231,  note  1,  234,  note  1. 

M. 

MAINE,   SIR   HENRY   SUMNER, 

on  the  supreme  court,  4,  note, 
on  legal  fictions,  146. 
MANDAMUS, 

may  be  issued  by  Supreme  Court  to  enforce  the  right  to  an 

appeal,  99. 
to  stop  proceedings  in  United  States  courts,  174,  276. 
■when  removable,  210. 
writ  of,  when  issued  by  circuit  court,  168. 

MARINERS'  WAGES,  275,  288. 
MARITIME  CONTRACTS,  286  et  seq. 
what  are,  303,  306,  note  1. 

MARITIME   LIENS,  274,  289. 
MARITIME   TORTS,  297  et  seq. 
MERCHANT    VESSELS, 

illegal  carriage  of  passengers  in,  182,  note. 
MONEY   LIMIT,  88,  91,  120,  121. 
MORTGAGES, 

railroad,  suits  to  foreclose,  155. 

of  ships,  not  cognizable  in  admiralty,  303. 
MOTION   DAY   IN    SUPREME    COURT,  104. 

N. 

NATIONAL   BANKS, 

removal  of  suits  by  or  against  receivers  of,  213. 
suits  by  or  against,  117,  and  note,  164. 


332  INDEX. 

NATIONAL   BANKS  —  continued. 

suits  by  receivers  of,  117,  note  1. 

•winding  up,  165. 
NATURALIZATION, 

frauds  in,  179. 
NE  EXEAT, 

writ  of,  170,  171. 
NEUTRALITY, 

offences  against,  299,  300. 
NEW  TRIALS, 

granted  by  circuit  court,  248,  249. 

motions  for,  247,  note  1. 
NON-RESIDENTS, 

improperly  joined  as  defendants,  141,  note  1. 
{See  Absent  Defendants.) 
NONSUITS,  249,  250. 

O. 

OBLIGATION   OF   CONTRACTS, 

impairing  by  State  laws,  235. 
OFFICERS   OF   THE   UNITED   STATES, 

distress  warrants  against,  165-166. 
removal  of  suits  against,  195,  196. 
suits  by,  117,  note  1,  279,  281. 
OWNERS   OF   VESSELS, 

liability  of,  290,  296,  297,  note  1. 

P. 

PARTIES, 

formal  or  not,  137,  194,  note  1. 

in  removal  suits,  187,  188,  194. 

necessary,  or  not,  135,  and  note,  137,  141,  note  1, 144, 194, 
note  1. 
PART-OWNERS   OF   SHIPS, 

accounts  between,  303,  304. 

disputes  between,  295. 
PASSENGERS, 

carriage  of,  suits  for,  287,  288,  note  I. 

illegal  carriage  of,  182,  note. 


INDEX.  333 

PATEXTS, 

suits  to  cancel,  82. 
PATENT    SUITS, 

accounting  in,  85. 

appeals  in,  74. 

cognizable  by  circuit  court,  161,  162. 

in  what  districts  must  be  brought,  162,  note  1. 

when  cognizable  by  State  courts,  162,  note  4,  276,  277. 
PENALTIES   AND  FORFEITURES, 

jurisdiction  to  recover,  182,  note,  281,  301. 
PETITORY  SUITS  IN  ADAHRALTY,  294. 
PLEADINGS, 

at  law,  244,  247,  note  1. 

in  admiralty,  314. 

in  criminal  cases,  267. 

in  equity,  247. 

POSSESSORY   SUITS   IN    ADMIRALTY,  294-295. 

POSTAL   LAWS, 

suits  arising  out  of,  164,  195,  note  2. 

PRACTICE, 

at  law,  244,  248,  249-252. 

in  admiralty,  314-316. 

in  equity,  247. 

in  criminal  cases,  266. 

of  circuit  court  of  appeals,  70,  76,  77,  83,  85,  87. 

of  Supreme  Court,  18,  19,  104. 

when  a  State  is  defendant,  20. 

(See  New  Trial,  Process.) 

PRELIMINARY  INJUNCTION,  82-85,  171. 

PRIZE, 

jurisdiction,  302. 

law,  sources  of,  312. 

procedure,  in  cases  of,  313. 
PROCESS, 

accepting  service  of,  124. 

civil,  116,  118. 

criminal,  111,  112. 

service  of,  by  publication,  125,  126. 


334  INDEX. 

PROCESS—  continued. 

to  compel  attendance  of  witnesses,  112,  258. 

■waiver  of  service  of,  123,  125. 
PRODUCTION   OF   DOCUMENTS, 

ordered  by  court,  265. 
PROOF, 

at  common  law,  253  et  seq. 

in  admiralty,  254,  259,  311. 

in  equity,  254,  259. 

in  prize  cases,  313,  314. 

(See  Evidence,  Witness.) 

PUBLIC    LANDS, 

suits  concerning,  181,  note  3. 


R.  ^ 

RAILROAD  MORTGAGES, 

suits  to  foreclose,  155. 
RAILROADS, 

removal  of  suits  against,  185,  214,  note  2,  215. 

suits  against,  152-154. 
RANSOM   CASES, 

cognizable  in  admiralty,  292. 
REBATE   OF   CUSTOMS,  suits  for,  163. 
RECEIVERS, 

appointed  by  United  States  courts,  117,  and  note  1,  181. 

of  national  banks,  appointment  of,  165. 

removal  of  suits  by  or  against,  213. 

suits  by,  117,  note  1,  281. 
RECORD, 

incomplete,  104. 

showing  a  Federal  question,  34,  54. 

what  constitutes,  33,  48,  54. 
REMANDING   CASES, 

improperly  removed,  198. 
REMOVAL   OF    SUIT, 

appeal  in  cases  of,  198. 

attachments,  etc.,  not  dissolved  by,  188. 


INDEX.  '  335 

REMOVAL  OF   SVIT —  co7itinued. 

conditional  removal,  not  effective,  188. 

conflict  with  State  courts,  in  cases  of,  197-198,  203. 

money  limit  in  cases  of,  189,  190,  200,  210. 

nature  of  the  proceeding,  187. 

petition  for,  when  and  how  filed,  196,  201,  202,  204. 

plaintiff's  right  to  notice  of  petition  for,  205. 

proceedings  upon  removal,  196,  et  seq. 

remanding  cases  improperly  removed,  198. 

removal, 

by  administrator,  executor,  trustee,  etc.,  215. 

by  assignee,  188. 

by  corporations,  185,  214,  note  2,  215. 

by  defendant,  187,  193,  194. 

by  plaintiff,  193. 

by  receivers,  213. 

of  criminal  suits,  195. 

of  civil  rights  cases,  195. 

of  habeas  corpus  suits,  208. 

on  ground  of  diverse  citizenship,  189,  199. 

Federal  question,  189,  199,  211. 
on  ground  of  local  prejudice,  190,  202  et  seq.,  205. 
restrictions  upon,  by  State  legislatures,  185. 
separable  controversy,  191,  210. 
statutes  governing  the,  183. 
waiver  of  right  to  remove,  188. 
what  cases  are  removable,  189,  207,  210. 
REPRESEXTATIVE  CAPACITY,  PERSON  ACTING  IN, 
removal  of  suits  by,  215. 
suits  by,  138. 
RESIDENCE  OF  CORPORATION,  152. 
RESIDENT,  116,  note,  153,  216. 

and  citizen,  distinction  between,  153,  200. 
RESTRAINING  ORDERS,  172,  173. 

{See  Injunction.) 
REVENUE  CASES, 

appeals  in,  74,  177,  note  1. 
external,  163,  177. 
internal,  163,  164,  177. 


336  INDEX. 

REVENUE   CASES  — continued. 

jurisdiction  over,  74,  163. 

seizures  in,  301. 
RULES  OF  DECISION,  229,  231,  note,  234,  note  1. 

in  equity  suits,  240. 

S. 
SALVAGE  CASES, 

cognizable  in  admiralty,  291. 

SCIRE  FACIAS, 

issued  by  circuit  courts,  167. 

issued  by  circuit  courts  of  appeal,  88. 

issued  by  supreme  court,  220. 
SECURITIES, 

on  appeal,  103. 

on  removal,  196,  202. 

not  dissolved  by  removal,  188. 
SEPARABLE  CONTROVERSY,  191,  210. 
SERVICE  OF  PROCESS, 

accepting,  124. 

by  publication,  125,  126. 

in  circuit  court,  116,  118. 

in  criminal  cases,  111. 

to  compel  attendance  of  witnesses,  112,  258. 

waiver  of,  123-125. 

when  a  State  is  defendant,  20. 
SET-OFF, 

not  entertained  in  admiralty,  305. 
SHIP-OWNER'S  LIABILITY,  290,  296,  297,  note  1. 

limitation  of,  296,  297,  note  1,  310. 
SPECIFIC  PERFORMANCE  OF  CONTRACTS, 

not  within  admiralty  jurisdiction,  305. 

SPOLIATION, 

is  subject  of  admiralty  jurisdiction,  299. 

STATE, 

"  Foreign,"  meaning  of,  in  11th  amendment,  16. 
not  suable  by  individuals,  16. 


INDEX.  337 

STATE  — continued. 

suable  by  the  United  States,  16,  note  2. 

when  considered  to  be  a  party  to  a  suit,  14,  15,  note  1. 

when  a  defendant,  service  upon,  20. 
STATES, 

controversies  between,  tried  in  Supreme  Court,  15. 

practice  in  such  cases,  19. 
STATE  CONSTITUTION, 

construction  of,  232. 
STATE  COURTS, 

appeals  from,  to  supreme  court,  43,  note,  47  et  seq. 

cannot  interfere  with  United  States  courts,  174. 

nor  with  United  States  officers,  276. 

conflicting   decisions   of,  how   treated  in   United   States 
courts,  231,  236,  239,  note  1. 

conflicting  with  circuit  courts,  174,  197-198,  203. 

decisions  of,  when  followed  by  Federal  courts,  230  et  seq. 

jurisdiction  of,  concurrent  with  Federal  courts,  115,  274  et 
seq.,  288,  note  1,  297,  note  2. 

legality  or  illegality  of,  252,  note. 

patent  cases,  when  triable  in,  162,  note  4,  276,  277. 

remanding  cases  improperly  removed  from,  198. 

removal  of  cases  from  (see  Removal  of  Suits). 

writ  of  error  to,  from  supreme  court,  43,  note,  47  et  seq. 
STATE  LAWS, 

conflicting  with  State  constitution,  31,  note  1. 

conflicting  with  United  States  Constitution,  24,  68. 

how  construed  in  United  States  courts,  230,  233. 

how  proved  in  United  States  courts,  252. 

in  regard  to  pleading,  245,  note  1. 

rules  of  decision  in  Federal  courts,  229,  235-239. 
STATE  TRIBUNALS, 

legality  or  illegality  of,  252,  note. 
STATUTE  OF  LIMITATIONS, 

in  admiralty,  310. 
STATUTE  OF  A  STATE  (See  State  Laws). 
STATUTES  OF  UNITED  STATES, 

questions  arising  under,  31,  68. 

removal  of  suits  arising  under,  211. 

22 


338  INDEX. 

STAYING  EXECUTION,  251. 
STAYING  PROCEEDINGS, 

in  circuit  court,  83. 

in  State  courts,  173,  174. 
STEVEDORE'S    SERVICES,  286. 

SUIT, 

meaning  of,  in  the  Statutes,  29,  208,  223. 
SUITS, 

in  rem,  amount  in  controversy,  91. 

between   citizens  of  different  States,  116,  122,  124,  133, 

143,  152. 
between  a  State  and  citizens  of  another  State,  16,  134, 

note  1. 
between  a  State  and  citizens  of  the  same  State,  6,  note  1. 
between  the  United  States  and  a  State,  16,  note  2. 
by  a  foreign  State  or  sovereign,  16,  17. 
by  the  United  States  or  its  officers,  116,  117,  note  1,  120, 

131,  281. 
practice  in  United  States  Courts,  18. 
SUPERSEDEAS, 

by  the  circuit  court,  251. 
by  the  circuit  court  of  appeals,  83. 
writ  of  error  operates  as,  44. 
SUPREME  COURT, 

appeals  to,  from  circuit  and  district  courts,  67  et  seq.,  87. 
from  circuit  court  of  appeals,  74  et  seq.,  87. 
from  State  courts,  24,  27,  28,  47  et  s^eq. 
from  Territorial  courts,  78,  79,  106. 
in  criminal  cases,  68,  72. 
certiorari  from,  75,  78,  104. 
construction  of,  9,  10. 
exclusive  jurisdiction  of,  9,  272. 
habeas  corpus  jurisdiction  of,  218,  219,  223,  224,  225. 
Motion  Day  in,  104. 
original  jurisdiction  of,  6  et  seq.,  9,  16,  note  2. 

in  cases  aifecting  ambassadors,  13,  272-273. 
in  controversies  between  States,  15. 
in  suits  between  a  State  and  citizens  of  another 
State,  16,  17. 


INDEX.  339 

SUPREME    COVRT  — continued. 

in  suits  by  foreign  States,  17. 

or  sovereigns,  17. 
may  be  extended  by  Congress  to  inferior  Federal 

courts,  8,  272,  273. 
must  be  confined  to  cases  enumerated  by  Consti- 
tution, 7. 
practice  in,  18,  19-21. 
writ  of  error  from,  27,  31,  43,  47  et  seq. 
to  State  courts,  27,  31,  43. 
to  inferior  Federal  courts,  67,  72,  87. 
(See  State,  Circuit,  and  District  Courts.) 

SURVEYS  IN  ADMIRALTY,  292. 


TERRITORIAL  COURTS,  78,  79,  82,  note  1 ;  105-106. 
TERRITORIES, 

jurisdiction  over  citizens  of,  138. 
TORTS, 

maritime,  297  et  seq. 
TRADE-MARK  CASES,  278. 
TREATIES, 

questions  arising  under,  31,  68. 

questions  under,  when  removable,  211. 
TRIAL  BY  JURY, 

guaranteed  in  criminal  cases,  112. 
TRIAL  OF  FACTS  BY  THE  COURT,  248. 
TRUSTEES, 

removal  of  suits  by,  215. 

suits  by,  138. 
TRUSTS  NOT  COGNIZABLE  IN  ADMIRALTY,  305. 
TRUSTS  AND  MONOPOLIES, 

statute  against,  181,  note  3. 

U. 
UNITED  STATES, 

as  plaintiff,  116,  117,  note  1;  120,  129,  131,  281. 
may  sue  a  State,  16,  note  2. 


40  INDEX. 


UNITED   ST ATES  —  continued. 

suits  against,  104,  181,  note  3,  281. 
suits  by  officers  of,  117,  note  1,  129,  279,  281. 
when  a  party,  in  the  meaning  of  the  Constitution,  14. 
UNITED  STATES  COURTS, 

appeal  to,  from  State  com-ts,  24,  27,  47  et  seq. 
cannot  interfere  with  State  courts,  174. 

except  in  bankruptcy  cases,  173,  note  3. 
not  subject  to  interference  of  State  courts,  174. 
pleadings  in,  at  law,  244. 
in  admiralty,  314. 
in  criminal  cases,  267. 
in  equity  cases,  247. 
practice  in,  at  law,  244,  248,  249-252. 
in  admiralty,  314-316. 
in  criminal  cases,  266. 
in  equity,  18,  247. 
rules  of  decision  in,  229,  231,  note;  234,  note  1;  240. 
(See  Supreme  Court,  Circuit  Court  of  Appeals,  Circuit 

Court,  and  District  Court.) 
UNITED  STATES  LAWS, 

questions  arising  under,  31,  68. 

questions  under,  when  removable,  211,  214,  note  2. 

V. 

VERDICTS,  269. 

VESSELS, 

contracts  to  build,  303. 

owners'  liability  for,  290,  296,  297,  note  1. 

limitation  of  owner's  liability,  296,  297,  note  1,  310. 


w. 


WAGES,  MARINERS',  275,  288. 

WAIVER  OF  SERVICE  OF  TROCESS,  123,  125. 

WITNESS, 

competency  of,  254  et  seq.,  270. 

cross-examination  of,  259. 

process  to  compel  attendance  of,  112,  258 


INDEX.  341 

WRIT  OF  CERTIORARI,  75-78,  104. 

iu  removal  cases,  198. 
WRIT  OF  ERROR,  42  et  seq. 

amendments  to,  100-101. 

amount  of  claim,  88. 

distinguished  from  appeal,  68. 

forms  of,  43,  100. 

from  the  inferior  Federal  courts,  67,  87. 

from  the  State  courts,  47  et  seq. 

in  criminal  cases,  72. 

is  a  matter  of  right,  67,  note  1. 

must  be  directed  to  the  court  where  the  record  is,  30,  31. 

nature  of,  42  et  seq. 

parties  to,  98. 

practice  in  re.spect  to,  42,  98,  100,  103. 

taken  only  after  final  judgment,  67,  note  1. 

when  must  he  taken,  from  State  courts,  43,  note  1. 
from  Federal  courts,  87. 
WRIT  OF  MANDAMUS, 

cannot  be  issued  by  State  courts  to  stop  proceedings  in 
Federal  courts,  174,  276. 
nor  against  United  States  officers,  276. 

when  issued  by  circuit  court.  168. 

when  removable,  210. 

WRIT  OF  NE  EXE  A  T,  170,  171. 
WRIT  OF  PROHIBITION, 

when  issued  by  circuit  court  of  appeals,  88,  note  1. 
when  removable,  210. 

WRIT  OF  SCIRE  FACIAS, 
issued  by  circuit  court,  167. 
issued  by  circuit  court  of  appeals,  88. 
issued  by  supreme  court,  220. 


THE  STUDENTS'  SERIES. 


CAREFULLY  PREPARED  TREATISES 

BY  COMPETENT   WRITERS   ON  THE  ELEMENTS  OF   THE   LAW. 

COVERING   SUBJECTS   TAUGHT  IN   DISTINCT  COURSES 

IN  THE  LEADING  LAW  SCHOOLS. 

AMONG  the  authors  who  have  prepared  volumes  for  this  important  series 
are  Melvillk  M.  Bigelow,  LL.D.,  the  distinguished  law  writer, 
and  lecturer  at  Boston  University,  Northwestern  Universitj',  and 
Michigan  University;  Prof.  Eugenk  Wambaugh,  late  of  Iowa  State 
Universit}-,  now  of  the  Law  Department  of  Harvard  University;  Prof. 
William"  C.  Robinson,  of  Yale  College,  now  head  of  the  Law"  Depart- 
ment of  the  Catholic  University,  Washington,  and  author  of  "The  Law  of 
Patents"  ;  Hon.  Thomas  M.  Cooley.  the  eminent  author  of  "Constitu- 
tional Limitations";  Edwin  E.  Buyant,  Dean  of  the  Law  Department  of 
the  State  University  of  Wisconsin;  Marshall  D.  Ewell,  LL  D.,  M.D., 
of  the  Kent  College  of  Law,  Chicago;  the  late  Benjamin  K.  Curtis,  Justice 
of  the  United  States  Supreme  Court,  and  lecturer  at  Harvard  University; 
Prof.  Edwaud  Avery  Harriman,  of  the  Northwestern  University  Law 
School;  Prof.  Ernest  W.  Huffcut,  of  Cornell  University  School  of  Law; 
Prof.  Francis  M.  Burdick,  of  the  Law  School  of  Columbia  University; 
Arthur  G.  Sedgwick,  the  well-known  writer;  William  Wikt  Howe, 
formerly  Chief  Justice  of  Louisiana;  the  late  Judge  John  Wilder  May,  etc. 

VOLUHES  ALREADY  ISSUED  IN  "THE  STUDENTS'  SERIES." 

I.  Bigelow's  Elements  of  tlie  Law  of  Bills,  Notes,  and  Cheques. 
IL  Big-elow's  Elements  of  Equity. 

III.  Bigelow's  Elements  of  the  Law  of  Torts. 

IV.  Bigelow's  Law  of  Wills  for  Students. 
V.  Bryant's  Principles  of  Code  Pleading. 

VI.  Burdick' s  Law  of  Sales. 

VII.  Cooley's  General  Principles  of  Constitutional  Law  in  the  United 
States  of  America. 
VIII.  Curtis's  Jurisdiction,  Practice,  and  Peculiar  Jurisprudence  of 
the  Courts  of  the  United  States. 
IX.  Ewell's  Manual  of  Medical  Jurisprudence  for  the  Use  of  Stu- 
dents at  Law  and  of  Medicine. 
X.  Harriman' s  Elements  of  the  Law  of  Contracts. 
XL  Heard's  Principles  of  Civil  Pleading. 
XII.  Heard's  Principles  of  Criminal  Pleading. 
XIIL  Howe's  Studies  in  the  Civil  Law. 
XIV.  Huffcut's   Elements   of   the   Law  of  Agency  as  relating  to 

Contract. 
XV.  May  on  the  Law  of  Crimes. 
XVI.  Robinson's  Elementary  Law. 

XVII.  Robinson's  Forensic  Oratory:  A  Manual  for  Advocates. 
XV'III.  Sedgwick's  Handbook  of  the  Law  of  Damages. 
XIX.  Stephen's  Digest  of  the  Law  of  Evidence. 
XX.  Stimson's  Glossary  of  Technical  Terms,  Phrases,  and  Maxims 

of  the  Common  Law. 
XXI.  Wambaugh  on  the  Study  of  Cases. 


The  Volumes  are  of  12mo  size,  containing  from  300  to  400  closely  printed 
pages.    Price  per  Volume :  cloth,  §2.50  net ;  law  sheep,  $3.00  net. 

Ji:^=  See  also  list  of  "  Cases  "  on  next  page. 

1 


THE  STUDENTS'  SERIES. 


CASES  TO  ACCOnPANY  "THE  STUDENTS'  SERIES." 

Beale's  Cases  on  the  Law  of  Damages. 

Bigelow's  Cases  on  the  Law  of  Bills,  Notes,  and  Cheques. 

Bigelow's  Cases  on  the  Law  of  Torts. 

Burdick's  Cases  on  Partnership  (8vo.  $4.50  net). 

Burdick's  Cases  on  Sales  (8vo.  $4.50  net). 

Chaplin's  Cases  on  Criminal  Law. 

Huncut's  Cases  on  Agency. 

Wambaugh's  Cases  for  Analysis. 


The  Volumes  of  Cases  are  bound  in  cloth  only,  and  unless  other- 
ivise  stated,  the  size  is  small  8vo,  and  the  price  $3,00  net. 


In  planning  and  developing  the  Students'  Series,  five  objects  have  been 
constantly  sought  :  — 

First.  That  each  subject  should  be  treated  by  a  man  specially  fitted 
through  study,  training,  and  experience. 

Second.  That  the  arrangement  should  be  logical,  and  the  treatment 
concise,  clear,  and  comprehensive. 

Third.  That  the  principles  of  the  law  of  each  subject,  the  real  founda- 
tion and  framework,  should  be  so  carefull}'  and  clearly  presented  and 
explained  that  the  student  could  grasp  the  facts  and  the  reasons  for  them, 
and  feel  with  these  firmly  in  mind  that  he  would  be  able  to  handle  success- 
fully the  variations  which  may  come  later. 

Fourth.  That  the  cases  cited  and  commented  on  should  be  those  on 
which  the  law  rests,  and  which  most  clearly  show  how  and  why  the  law 
became  what  it  is.  Not  quantity  of  citations,  but  quality  and'  strength, 
have  been  sought. 

Fifth.  That  the  cost  of  the  volumes  should  be  kept  as  low  as  possible, 
consistent  with  the  highest  standards,  both  of  authors'  text  and  quality  of 
manufacture. 

Teachers  and  students  alike  understand  the  advantage-  of  having  books 
prepared  for  them  by  men  who  are  specialists,  and  who  devote  themselves 
to  the  subjects  on  which  they  write.  With  such  requirements  books  cannot 
be  written  to  order  in  three  or  four  months,  and  several  years  have  been 
spent  in  building  up  the  Students'  Series  to  its  present  size,  while  a  num- 
ber of  works  on  other  important  subjects  are  now  in  careful  preparation. 

The  volumes  of  the  Students'  Series  are  in  use  as  text-books  in  leading 
law  schools  throughout  the  United  States.  Of  them,  one  of  the  most  learned 
teachers  of  law  in  America,  the  late  Prof.  William  G.  Hammond,  of  St. 
Louis,  said  :  — 

"  In  planning  this  series  of  law  books  for  students  you  have  rendered  a  very 
great  service,  not  only  to  the  students  themselves,  but  also  to  the  profession. 
There  has  been  no  greater  obstacle  to  all  efforts  for  a  higher  standard  of  legal 
education  than  the  lack  of  such  books." 

And  this  testimony  as  to  the  plan  has  been  repeated  as  to  execution,  by 
numbers  of  prominent  teachers  in  letters  to  the  authors  and  publishers,  and 
by  the  more  valuable  testimony  of  introduction  and  use  with  their  classes. 

^^  See  subsequent  pages  for  full  information  regarding  each  work. 

2 


THE  STUDENTS'   SERIES. 


BIGELOW  ON  BILLS  AND  NOTES. 

Elements  of  the  Law  of  Bills,  Notes,  and  Cheques,  for  Students.    By 
Melville  M.  Bigelow,  rii.D.,  author  of  "  Elements  of  the  Law 
of  Torts,"  etc.     12mo.     Cloth,  $2.50  net;  law  sheep,  -$3.00  net. 
Mr.  Bigelow's  reputation  as  a  clear,  logical,  and  strong  student  and  in- 
structor in  the  law  is  established  by  his  standard  treatises  no  less  than  by 
the  masterly  "  Elements  of  Torts,"  so  well  known  to  and  extensively  used 
by  teachers  and  students  of  law.     This  book  is  a  discussion  of  the  elements 
of  the  Law  of  Bills  and  Notes,  not  an  elementary  treatise  in  the  sense  of 
touching  on  the  simpler  questions  only.     The  groundwork  of  the  law,  com- 
plex as  well  as  simple,  is  discussed  fully,  clearl}',  and  exhaustively.    Cases 
that  are  really  leading  cases  are  referred  to  in  sufficient  number  to  illustrate 
and  support  the  points  of  law  stated. 

It  is  particularly  adapted  for  students'  work,  —  J.  C.  Knowlton,  Law  Depart- 
inent,  Michigan  Slate  University. 

It  bears  evidence  of  the  conciseness  and  power  of  accurate  statement  which 
characterize  the  other  work  of  the  author,  and  I  am  convinced  that  it  will  prove 
a  very  satisfactory  booli  for  class  use.  —  Emlin  McLain,  Chancellor  Law  Depart' 
ment,  Iowa  State  University. 

It  is  written  with  the  clearness,  force,  and  logic  characteristic  of  the  learned 
author.  In  the  arrangement  —  in  what  it  includes,  and  in  what  it  omits  as  well  — 
one  can  easily  discern  the  hand  of  the  practised  teacher,  as  weU  as  of  the  experi- 
enced legal  writer.  —  Prof.  E.  W.  Huffcut,  Cornell  University  School  of  Law. 

I  believe  it  to  be  decidedly  the  best  student's  book  upon  the  subject  that  has 
yet  appeared.  —  Prof.  F.  R.  Mechem,  Law  Department,  Michigan  State  University, 

To  accompany  the  above  :  — 

Cases  on  the  Law  of  Bills,  Notes,  and  Cheques.     Edited  by  Melville 

M.  Bigelow.     Crown  8vo.     Clotii,  $3.00  net. 


BIGELOW  ON  EaUITY. 

Elements  of  Equity  for  the  Use  of  Students.  By  Melville  M. 
Bigelow,  Ph.D.,  lecturer  in  the  School  of  Law,  Boston  University, 
author  of  "  Elements  of  the  Law  of  Torts,"  etc.  12mo.  Cloth, 
$2.50  net;  law  sheep,  .fS.OO  net. 

It  is  to  be  commended  for  its  clearness  and  conciseness  of  statement.  I  regard 
the  first  chapter  as  a  model.  The  doctrines  of  Tacking,  Subrogation,  and  Marshal- 
ling, found  in  Chapters  14,  19,  and  20,  are  more  easily  comprehended  than  in  any 
other  work  on  those  subjects  that  I  have  seen.  —  Hon.  J.  H.  Carpenter,  Dean  of 
Law  Facility,  University  of  Wisconsin. 


BIGELOW  ON  TORTS. 

Elements  of  the  Law  of  Torts  for  the  Use  of  Students.  By  Melville 
M.  Bigelow,  Ph.D.,  author  of  "  A  Treatise  on  the  Law  of  Estop- 
pel," "A  Treatise  on  the  Law  of  Fraud,"  etc.  Sixth  edition,  re- 
vised and  enlarged.    12mo.    Cloth,  $2.60  ne^/  law  sheep,  $3.00  ne^ 

3 


THE  STUDENTS'   SERIES. 


In  the  sixth  edition  of  this  well-ltnown  text-book  the  author  has  devoted 
much  time  and  care  to  the  development  of  the  general  doctrine  of  "Torts" 
as  an  introduction  to  the  study  of  "  Specific  Torts."  This  work,  done  with 
his  usual  thoroughness  and  clearness,  does  away  with  the  one  criticism  made 
on  the  work,  that  it  plunged  the  student  into  the  studj'  of  specific  torts 
without  instructing  him  in  the  general  law  of  the  subject.  The  whole  book 
has  been  carefully  revised,  and  many  passages  rewritten.  The  book  is  now 
theoretically  and  practically'  complete  and  logical. 

It  seems  to  me  admirably  adapted  to  the  purpose  for  which  it  is  written.  Mr. 
Bigelow  is  very  happy  in  his  statement  of  legal  principles,  and  nowhere  so  much  so, 
I  think,  as  in  this  book.  —  Hon.  Thomas  M.  Cooley. 

I  have  examined  Bigelow  on  Torts,  and  find  it  to  be  an  excellent  text-book  for 
students.  The  author  is  plainly  a  master  of  his  subject,  and  not  merely  a  good 
compiler.  .  .  .  The  work  is,  in  my  judgment,  a  model  "Institute." — R.  McP. 
Smith,    Vaiiderbilt  Vniversitij. 

A  clear  and  compact  treatise,  well  fitted  to  be  a  manual  of  a  student  of  law.  — 
Hon.  John  Bascom,  University  of  Wisconsin. 

To  accompany  the  above :  — 
Cases  on  the  Law  of  Torts.    Edited  by  Melville  M.  Bigelow. 
Crown  8vo.     Cloth,  $3.00  net. 


BIGELOWS  LAW  OF  WILLS. 

The  Law  of  Wills.  For  Students.  By  Melville  M.  Bigelow,  Ph.D., 
author  of  "  Elements  of  the  Law  of  Torts,"  etc.,  editor  of  "  Sixth 
American  Edition  of  Jarman  on  Wills,"  etc.  12rao.  Cloth, 
$2.50  net ;  sheep,  $3.00  net. 

No  teacher  of  law  in  America  is  more  familiar  with  the  tlieory  of  the 
Law  of  AVills  than  Mr.  Bigelow,  and  students  everywhere  are  to  be  con- 
gratulated on  the  publication  of  a  new  work  on  this  subject  by  a'n  author 
so  experienced  and  so  learned. 


BRYANT'S  CODE  PLEADING. 

The  Principles  of  Code  Pleading  for  the  Use  of  Students.     By  Edwin 

E.  Bryant,  Dean  of  the  Law  Department  of  the  State  University 

of  Wisconsin,  and  late  Assistant  Attorney-General  of  the  United 

States.     12mo.     Cloth,  $2.50  net ;  law  sheep,  $3.00  net. 

The  science  of  code  pleading  being  a  development  of  the  last  fifty  years, 

and  getting  its  shape  and  form  gradually  from  the  decisions  of  the  courts  as 

well  as  from  the  enactments  of  the  law-making  bodies,  has  only  within  a  few 

years  been  treated  in  any  satisfactory  way  by  text  writers. 

Many  instructors  feel,  however,  that  too  much  time  is  needed  for  the 
student  to  get  the  elementary  principles  from  the  larger  books;  and  this 
book  is  written  to  bring  within  easy  reach,  in  condensed  and  clear  form, 

4 


THE  STUDENTS'   SERIES. 


the  true  elements  of  the  subject ;  to  give  the  student  sufficient  knowledge 
of  the  old  common  law  pleading  for  a  foundation  for  the  less  formal,  but 
not  necessarily  less  exact,  pleading  under  the  code,  and  to  put  in  orderly 
array  the  principles  of  this  branch  of  the  law,  which  have  too  frequently 
been  considered,  by  students,  at  least,  as  of  little  importance. 

The  principles  are  presented  in  a  clear,  satisfactory  manner,  and  the  Code 
References  are  a  valuable  addition.  In  short,  it  exactly  supplies  a  want  as  a 
text^book  for  students,  whether  in  oflBces  or  law  schools,  wherever  the  reformed 
procedure  prevails  or  is  largest.  —  Chaeles  M.  Campbell,  Law  Department, 
Colorado  Slate  University. 

BURDICK  ON  SALES. 

The  Law  of  Sales  of  Personal  Property.  By  Francis  M.  Bcedick, 
of  the  Law  School  of  Columbia  University.  12mo.  Cloth,  $2.50 
net;  law  sheep,  $3.00  net. 

In  this  work  by  an  author  and  teacher  of  reputation  and  experience, 
questions  are  discussed  with  a  fulness  proportioned  to  the  trouble  they  give 
to  the  student,  or  to  his  aptness  to  misapprehend  the  principles  they  involve. 
The  essential  terms  of  the  "sale  contract"  are  classified  and  distinguished 
from  agreements  merely  collateral  to  it,  to  bring  order  out  of  the  judicial 
and  text-book  chaos  of  "conditions  and  warranties." 

The  provisions  of  the  Statute  of  Frauds  bearing  upon  the  sale  of  goods 
are  treated  in  connection  with  the  common  law  topics  to  which  they  relate. 
This  method  is  novel,  avoiding  much  repetition,  and  giving  economy  of 
space  and  equal  economy  of  time  and  perplexity  to  the  student. 

It  is  a  small  magazine  of  learning.  —  New  York  Nation. 

It  is  a  most  admirable  treatise. — James  B.  Scott,  Los  Angeles  Law  School, 
Los  Angeles,  Cat. 

It  is  a  pleasure  to  read  a  book  by  one  who  seems  to  thoroughly  understand  the 
relation  of  the  subject  to  the  general  law  of  contracts,  and  who  is  discriminating 
enough  to  assume  that  we  have  read  something  on  the  general  law.  —  C.  A.  Bobbins, 
Law  Dept.  of  the  State  University  of  Nebraska. 

To  accompany  the  above :  — 
Selected  Cases  on  the  Law  of  Sales  of  Personal  Property,     By  Francis 
M  BuRDiCK.     8vo.     Cloth,  $4.50  net. 


COOLEY  ON  CONSTITTJTIONAL  LAW. 

The  General  Principles  of  Constitntional  Law  in  the  United  States 
of  America.     By  Thomas  M.  Coolet,  author  of  "  A  Treatise  on 
Constitutional  Limitations."   Second  edition,  by  Alexis  C.  Axgell, 
of  the  Detroit  Bar.     12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 
The  design  has  been  to  present  succinctly  the  general  principles  of  con- 
stitutional law,  whether  they  pertain  to  the  federal  system,  or  to  the  State 
system,  or  to  both.     Formerly  the  structure  of  the  federal  constitutional 
government  was  so  distinct  from  that  of  the  States  that  each  might  usefully 

6 


THE  STUDENTS'  SERIES. 


be  examined  and  discussed  apart  from  the  other  ;  but  the  points  of  contact 
and  dependence  have  been  so  largely  increased  by  the  recent  amendments  to 
the  federal  constitution  that  a  different  course  is  now  deemed  advisable. 

The  new  edition  contains  large  additions.  In  its  preparation,  the 
editor,  while  aiming  to  keep  the  book  a  manual,  and  not  to  make  it  a  digest, 
has  treated  briefly  all  important  points  covered  by  the  cases  decided  up  to 
a  very  recent  date.  He  made  such  changes  in  the  text  and  notes  as  had 
been  required  by  the  many  important  decisions  upon  constitutional  law 
rendered  in  the  last  ten  j-ears. 

It  is  worthy  of  tlie  reputation  of  the  distinguished  author.  It  is  the  best  book 
on  the  subject  to  be  placed  in  the  hands  of  a  student,  and  is  a  convenient  book  of 
reference  for  any  one.  — Prof.  Manning  F.  Force,  UL.D.,  Cincinnati  Law  School. 

It  is  a  work  of  great  value,  not  only  for  students  in  institutions  of  learning, 
but  as  well  for  the  lawyer,  to  whom  it  supplies  at  once  a  treatise  and  a  digest  of 
constitutional  law.  —  Henry  Hitchcock,  late  Dean  of  St.  Louis  Law  School. 

I  have  examined  it  with  great  care,  comparing  it  carefully  with  the  old  edition, 
and  testing  it  in  various  points.  As  a  result,  it  gives  me  pleasure  to  state  that  we 
shall  use  the  book  both  in  the  courses  in  constitutional  history  and  law  in  the  col- 
legiate department,  and  in  one  of  the  classes  in  the  law  school.  The  work  of  the 
editor  of  the  new  edition,  Mr.  Angell,  has  been  done  with  the  exactness  and  care 
which  an  intimate  acquaintance  with  him  as  a  classmate  at  the  University  of  Michi- 
gan led  me  to  expect  in  whatever  he  undertook.  Judge  Cooley  is  fortunate  in  hav- 
ing so  excellent  an  editor  for  the  revision.  —  Letter  from  George  W.  Knight' 
Professor  of  Internnlional  and  Constitutional  Law,  Ohio  State  University. 


CURTIS  ON  UNITED  STATES  COURTS. 

Jurisdiction,  Practice,  and  Pectiliar  Jurisprudence  of  the  Courts  of  the 
United  States.  By  Benjamin  R.  Curtis,  LL.D.,  late  Associate 
Justice  of  the  Supreme  Court  of  the  United  States.  Edited  by 
George  Ticknor  Curtis  and  Benjamin  R.  Curtis.  Second 
edition,  by  H.  C.  Merwin,  Law  Department  of  Boston  University. 
12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

These  lectures  were  delivered  by  the  late  Judge  Curtis  to  a  class  of  stu- 
dents in  the  Harvard  Law  School,  in  the  academic  year  1872-73,  and  were 
edited  and  prepared  for  the  press  by  his  son  and  brother,  both  lawyers 
of  prominence.  Mr.  Merwin  has  devoted  much  time  to  the  consideration  of 
the  recent  changes  and  developments  in  the  practice  of  the  Federal  Courts; 
and  his  additions,  in  the  second  edition,  are  thought  by  those  who  have 
examined  them  to  deserve  the  words  of  commendation  bestowed  upon 
Judge  Curtis's  original  text. 

A  work  of  the  highest  standard  on  the  subject  treated.  —  Boston  Post. 
Cannot  fail  to  be  of  great  service  to  the  student  in  the  prosecution  of  his 
legal  studies.  —  Chicago  Legal  Neivs. 

It  is  by  far  the  best  epitome  of  that  extensive  subject ;  and  the  clearness  of  the 
style  and  orderly  arrangement  of  the  learned  author  will  especially  recommend 
it  to  students.  —  Hon.  Edmund  H.  Bennett,  Dean  of  School  of  Law,  Boston 
University. 


THE  STUDENTS'   SERIES. 


EWELL'S  MEDICAL  JTmiSPRUDENCE. 

A  Manual  of  Medical  Jurisprudence  for  the  Use  of  Students  at  Law 
and  of  Medicine.  By  Marshall  D.  Ewell,  M.D.,  LL.D.,  of  the 
Union  College  of  Law,  Chicago.  12mo.  Cloth,  $2.50  net;  law 
sheep,  $3.00  net. 

Mr.  Ewell  has  endeavored  to  produce  a  work  which,  within  a  moderate 
c  mipass,  states  all  the  leading  facts  and  principles  of  the  science  concisely 
and  j-et  clearh'.  In  it  will  be  found  the  substance  of  all  the  principles  stated 
in  the  mgre  voluminous  and  expensive  works. 

It  is  excellently  done.  I  wish  it  might  be  read  by  every  student  of  law  as  well 
as  by  every  student  of  medicine.  —  Prof.  Henby  Wade  Rogers,  when  at  University 
of  Michigan. 

I  can  safely  say  that  for  use  as  a  text-book,  either  in  a  medical  college  or  law 
school,  it  is  preferable  to  any  book  of  my  acquaintance.  In  his  chapter  on  Mal- 
practice, Professor  Ewell  has  succeeded,  within  the  compass  of  eighteen  pages,  in 
setting  forth  the  general  doctrine  of  the  law  so  comprehensively  as  to  make  it 
highly  useful  for  the  practitioner  as  well  as  the  student.  —  Henby  H.  Ingebsoll, 
Dean  Law  Department,  UniversUy  of  Tennessee. 


HARRIMAN  ON  CONTRACTS. 

Elements  of  the  Law  of  Contracts.    By  Edward  Avert  Habriman. 

Professor  of  Law  in  the  Northwestern  University  Law   School. 

12mo.     Cloth,  .$2.50  net;  law  sheep,  $3.00  net. 

The  justification  of  this  book  is  .  .  .  that  it  is  an  attempt  to  explain 
the  rules  of  positive  contract  law  in  accordance  with  the  actual  historical 
development  of  those  rules,  and  to  classify  and  arrange  those  rules  as  far  as 
possible  in  a  scientific  manner. 

The  cases  cited  and  referred  to  have  been  selected  with  the  greatest  care, 
as  best  illustrating  and  explaining  the  rules  and  doctrines  of  the  law  of 
contracts. 


ment 


A  most  admirable  summary  of  the  subject.  —  B.  J.  Ramaoe,  Dean  Law  Depart. 

■It,  University  of  the  South. 


A  superior  and  original  work.  —  William  Trickett,  Dean  Dickinson  School 
of  Laic. 

It  is  certainly  a  departure  from  the  usual  method  of  dealing  with  the  subject, 
and  I  am  uicUned  to  think  a  departure  in  the  direction  of  a  clearer  and  better 
understanding  of  the  law.  -  C.  P.  Norton,  Buffalo  Law  School. 


HEARD  ON  CIVIL  PLEADING. 

The  Principles  of   Pleading  in  Civil  Actions.     By  Franklin  FisKE 

Heard.     12mo.     Cloth,  $2.50  net ;  law  sheep,  $3.00  net. 

Under  whatever  system  of  statutory  procedure  a  law  student  may  design  to 
practise,  he  wiU  find  it  equally  necessary  to  become  familiar  with  the  principles  of 
common  law  pleading.  Mr.  Heard's  work  is  a  plain  and  clear  guide  to  these.  — 
Hon.  Simeon  E.  Baldwin,  Law  Department  of  Yale  College. 

7 


THE  STUDENTS'   SERIES. 


HEARD  ON  CRIMINAL  PLEADING. 

The  Principles  of  Criminal  Pleading.     By  Franklin  Fiskb  Heard. 

12mo.     Cloth,  $2.60  net;  law  sheep,  $3.00  net. 

It  deserves  an  important  position  among  the  text-books  in  every  law  school  in 
the  country.  ^William  C.  Robinson,  Dean  Law  Department,  Catholic  University  of 
America.  

HOWE  ON  THE  CIVIL  LAW. 

Studies  in  the  Civil  Law  and  its  Relations  to  the  Law  of  England 
and  America.  By  William  Wirt  Howe,  late  Justice  of  the 
Supreme  Court  of  Louisiana.  12ino.  Cloth,  $2.50  net;  law  sheep, 
$3.00  net. 

Tlie  book  differs  in  plan  from  the  merely  antiquarian  and  academic 
treatises  on  Roman  and  Civil  Law.  The  author  has  studied  and  practised 
his  profession  both  in  the  common  law  States  of  Missouri  and  New  York 
and  in  the  civil  law  State  of  Louisiana,  and  has  written  this  book  in  the 
light  of  large  experience.  The  special  feature  of  the  work  is  found  in  the 
presentation  of  the  leading  principles  of  the  Roman  and  Civil  Law  and  the 
tracing  of  their  development  and  application  in  our  own  jurisprudence  to 
the  complications  of  modern  life,  thus  taking  up  the  comparative  study 
of  the  Civil  Law  and  of  the  Law  as  we  have  it  now.  The  book  will  be  of 
practical  use,  not  only  in  our  numerous  law  schools,  but  to  those  members 
of  the  bar  who  may  wish  to  investigate  the  subject. 

Has  every  quality  which  such  a  book  needs,  and  which,  to  say  the  least,  most 
books  on  Roman  Law  in  English  have  not.  It  is  simple,  clear,  and  intelligible,  and 
we  can  strongly  recommend  it  to  the  student,  or  to  any  one  interested  in  the  subject. 
—  The  Nation. 

HXTFFCUT  ON  AGENCY. 

Elements  of  the  Law  of  Agency  as  relating  to  Contract.    By  Ernest 
W.  HuFFCuT,  Professor  of  Law  in  Cornell  University  School  of 
Law.     12mo.     Cloth,  $2.50  net ;  law  sheep,  $3.00  net. 
Law  schools  and   law  offices   obtani  in  this  book  what  has  long  been 
needed,  —a  book  on  Agency  written  clearly  and  concisely  by  a  man  whose 
own  experience  with  his  classes  has  taught  him  what  were  the  fundamental 
principles  of  the  law,  and  how  best  to  arrange  and  present  those  principles. 
The  citation  of  authorities  for  the  purpose  of  illustrating  the  rules  of  law 
is  very  full  and  from  varied  sources.     It  is  not  intended  as  a  special  digest 
of  the  subject,  but  all  the  points  of  law  are  amply  supported  by  the  best 
authorities. 

I  am  particularly  impressed  by  the  clear  and  Bcieutiflc  arrangement.  —  Geobgb 
E.  Beers,  Law  Department,  Yale  University. 

Perhaps  the  most  striking  characteristic  of  the  book  is  the  painstaking  and  accu- 
rate analysis  which  the  subject  has  received.  ...  It  is  logical  in  its  arrangement, 

8 


THE   STUDENTS'   SERIES. 


accurate  in  its  statement  of  the  law,  and  discriminating  in  its  citations  oi  authori* 
ties.  — American  Law  Register  and  Eeview. 

The  work  is  a  very  good  one  indeed.  —Chaelbs  M.  Slack,  Dean  Hastings  Col- 
lege of  Law. 

''  have  examined  with  some  care  Professor  Huffcut's  treatise  on  Agency,  and 
am  much  pleased  with  it  as  a  text-book  for  the  use  of  students.  —  Prof.  R.  S.  Gould, 
Law  Department,  University  oj  Texas. 

To  accompany  " Huffcut  on  Agency" :  — 

Cases  on  the  Law  of  Agency.    By  Ernest  W.  Hdffcut.     Crown  8vo. 
Cloth,  $3  00  net. 


MAY  ON  CRIMINAL  LAW. 

The  Law  of  Crimes.  By  J.  Wilder  Mat,  Chief  Justice  of  the  Muni- 
cipal Court  of  the  City  of  Boston.  Second  edition,  edited  by  Joseph 
Henry  Beale,  Jr.,  Assistant  Professor  of  Law  in  Harvard  Univer- 
sity.    12mo.     Cloth,  $2.50  «e<;  law  sheep,  $3.00  nef. 

This  new  edition  of  Judge  May's  deservedly  popular  work  contains  large 
additions.  The  editor  states  in  the  preface  that  the  original  plan  included 
no  discussion  of  the  subjects  of  Criminal  Pleading  and  Practice ;  but  it  was 
found  that  it  would  be  better  adapted  to  the  use  of  students  if  these  subjects 
were  briefly  considered,  and  this  has  accordingly  been  done.  Much  has  also 
been  added  to  the  first  chapter,  which  contains  the  general  principles  under- 
Ij'ing  the  criminal  law. 

It  is  to  be  especially  commended  for  its  clear  and  concise  definitions,  as  also  for 
its  citations  of  leading  cases  directly  upon  the  matter  under  discussion. — From 
J.  H.  Carpentee,  Laip  Faculty,  University  of  Wisconsin. 

It  is  not  a  mere  sjTiopsis,  but  an  interesting  discussion,  quite  full  enough  to  give 
the  student  a  true  view  of  the  subject,  and  minute  enough  to  be  a  useful  handbook 
to  the  practitioner.  — Neiv  York  Laiv  Journal. 

To  accompany  "May's  Criminal  Law" :  — 

Cases  on  Criminal  Law.  By  H.  W.  Chaplin.  New  edition,  enlarged. 
Crown  8vo.     Cloth,  $3.00  net. 


ROBINSON'S  ELEMENTARY  LAW. 

Elementary  Law.      By  William  C.  Robinson,  LL.D.,  Professor  of 

Elementary  Law  in  Yale  College.     12mo.     Cloth,  $2.50  net;  law 

sheep,  $3.00  net. 

Contains  a  statement  of  the  principles,  rules,  and  definitions  of  American 
Common  Law,  both  civil  and  criminal,  arranged  in  logical  order,  with  refer- 
ences to  treatises  in  which  such  definitions,  rules,  and  principles  are  more 
extensiveh'  discussed. 

This  work  is  intended  to  serve  three  purposes :  First,  to  form  a  text-book 
for  the  use  of  students  in  law  schools,  and  of  others  who  are  under  com- 
petent instruction ;  second,  to  guide  private  students  in  their  investigation 

9 


THE   STUDENTS'  SERIES. 


of  the  rules  and  definitions  of  law ;  third,  to  render  students  fauailiar  with 
some  of  the  leading  treatises  upon  the  principal  topics  of  the  law. 

The  book  is  convenient  to  the  instructor  who  will  use  it  as  a  text  to  be  amplified 
in  his  lectures,  and  valuable  to  the  student  who  will  consult  the  references.  —  Prof . 
M.  F.  Force,  LXi.D.,  Cincinnati  Law  School. 


ROBINSON'S  FORENSIC  ORATORY. 

Forensic   Oratory:     A   Manual   for   Advocates.      By   William    C. 

Robinson,  LL.D.,  author  of  "The  Law  of  Patents  for  Useful 

Inventions,"  "Elementary  Law,"  etc.      12ino.     Cloth,  $2.50  net; 

law  sheep,  $3.00  7iet. 

A  new  and  suggestive  work  on  the  duties  and  functions  of  the  advocate. 
The  chapters  on  the  Presentation  of  Ideas  by  the  Production  of  Evidence  in 
Court,  the  Qualification  and  Training  of  Witnesses,  and  on  Direct,  Cross, 
and  Re-Direct  Examination,  commend  the  book  especially  to  the  bar  as  well 
as  to  students. 

The  trained  lawyer  as  well  as  the  student  will  find  much  that  is  helpful 
and  suggestive  in  the  pages  of  this  volume,  especially  on  the  subject  of 
cross  examination.  It  is  the  result  of  a  long  experience  and  a  constant 
study  of  the  trial  of  causes. 

This  is  a  book  which  no  student  of  law  can  afford  to  pass  by  without  a  thorough 
study  of  it.  It  is  also  a  work  which  no  practising  lawyer  who  undertakes  the  trial 
of  causes,  and  is  not  already  an  acknowledged  leader  in  the  courts,  can  afford  not 
to  read  and  read  again.  —American  Law  Beview. 

It  touches  upon  vital  points,  just  such  as  students  of  oratory,  especially  those 
who  are  entering  upon  the  practice  of  law,  need  to  have  urged  upor  them  in  this 
forcible  way.  —Thomas  C.  Teueblood,  Professor  of  Elocution  and  Oratory,  Depart- 
ment of  Law,  Michigan  University. 


SEDGWICK'S  ELEMENTS  OF  DAMAGES. 

Elements  of  Damages :  A  Handbook  for  the  Use  of  Students  and 
Practitioners.  By  Arthur  G.  Sedgwick.  12mo.  Cloth,  $2.50 
net;  law  sheep,  $3.00  net. 

This  book  is  not  an  abridgment  of  the  work  embodied  by  the  author  in 
his  edition  of  the  well-known  three-volume  treatise  on  the  Measure  of  Dam- 
ages, by  Theodore  Sedgwick.  The  entii-e  field  has  been  re-examined,  and 
the  whole  law  of  Damages  reviewed.  Its  principles  are  stated  in  the  form 
of  rules  or  pi-opositions  of  law  such  as  a  court  might  lay  down  to  a  jury, 
and  these  propositions  are  illustrated  by  the  cases  from  which  they  have 
been  drawn.  Wherever  local  variations  from  these  rules  exist,  such  local 
differences  are  stated,  and  their  causes,  so  far  as  possible,  explained. 

As  a  students'  book  it  is  very  admirable.  Probably  no  one  but  the  author  can 
see  how  it  could  be  made  better  than  it  is.  — American  Law  Review. 

I  can  cheerfully  recommend  the  book  as  an  excellent  presentation  of  the 
elements  of  the  subject.  —  Emlin  McClajn,  Chancellor  Law  Department,  Stale 
University  of  Iowa. 

10. 


THE   STUDENTS'   SERIES. 


Throughout  the  volume  the  references  to,  as  well  as  the  illustrations  of,  under- 
lying principles  are  judicious.  It  is  decidedly  a  meritorious  work.  —  Prof.  Chables 
M.  Campbeu,,  Law  Department,  University  0/  Colorado. 

To  accompany  the  foregoing  work  :  — 

Cases  on  the  Law  of  Damages.     By  Joseph  H.  Beale,  Jr.,  of  the 
Harvard  Law  School.     Crown  8vo.     Cloth,  S3. 00  net. 


STEPHEN'S   DIGEST  OF  EVIDENCE. 

A  Digest  of  the  Law  of  Evidence.  By  Sir  James  Fitz- James 
Stephen.  From  the  fonrth  English  edition.  With  Notes  and 
Additional  Illustrations  to  the  present  time,  chiefly  from  American 
Cases,  including  those  of  Johx  Wilder  Mat,  late  Chief  Justice 
of  the  Municipal  Court  of  the  City  of  Boston,  author  of  "  The  Law 
of  Insurance,"  etc.     12mo.     Cloth,  S2.50  net;  law  sheep,  S3.00  net. 

A  full  reprint  of  the  fourth  English  edition,  revised  by  the  author,  with 
references  to  American  cases. 

Short  as  it  is,  we  believe  it  will  be  found  to  contain  practically  the  whole 
law  of  the  subject. 


STIMSON'S  LAW  GLOSSARY. 

Glossary  of  Technical  Terms,  Phrases,  and  Maxims  of  the  Common 
Law.  By  Frederick  Jesup  Stimsox.  12mo.  Cloth,  S2.50  nef; 
law  sheep,  S3.00  net. 

This  book  is  a  concise  Law  Dictionary,  giving  in  common  English  an 
explanation  of  the  words  and  phrases,  English  as  well  as  Saxcn,  Latin,  or 
French,  which  are  of  common  technical  use  in  the  law.  The  popular  and 
usual  acceptation  of  each  phrase  is  given  in  much  the  same  general  shape  as 
it  stands  in  the  mind  of  the  trained  lawyer. 

A  very  convenient  little  work,  especially  useful  to  students  of  the  law, 
—  Chicago  Legal  Newi. 


WAMBAUGH'S  STUDY  OF  CASES. 
The  Study  of  Cases :  A  Course  of  Instruction  in  Heading  and  Stating 
Keported  Cases,  Composing  Head-Notes  and  Briefs,  Criticising  and 
Comparing  Authorities,  and  Compiling  Digests.  By  Ecgene 
Wambacgh,  Professor  in  the  Law  Department  of  Harvard  Univer- 
sity.   Second  edition.    12mo.    Cloth,  §2.50  net ;  law  sheep,  S3.00  net. 

The  purpose  of  the  work  as  expressed  by  its  author  is  "to  teach  the 
methods  by  which  lawyers  detect  dictn,  and  determine  the  weight  of  reported 
cases."  The  full  discussion  of  this  introduces  many  important  and  interest- 
mg  topics,  such  as  the  following :  How  to  write  a  Head-Note.  How  to  criti- 
cise Cases,  Combining  and  Preparing  Cases,  The  Growth  of  Legal  Doctrine, 

U 


THE  STUDENTS'  SERIES. 


Tlie  Importance  of  the  Unwritten  Law,  The  Respect  for  Authority,  The 
Preparation  of  Briefs,  How  to  compose  a  Digest,  etc. 

A  subject  of  the  greatest  importance  to  legal  practitioners,  and  one  which, 
strange  to  say,  has  never  before  engaged  the  attention  of  any  of  our  legal  writers. 
^7e  know  of  no  work  of  greater  importance  to  the  student.  It  should  be  adopted 
as  a  text-book  by  every  law  school  in  the  country.  —  The  Green  Bag. 

We  commend  this  book,  not  merely  to  students  of  the  law,  but  to  practising 
lawyers,  and  even  to  judges  on  the  bench.  It  incidentally  teaches  how  to  write  a 
decision,  as  well  as  how  to  find  out  the  doctrine  of  a  decision  after  it  is  written.  — 
The  American  Law  Review. 

Will  be  found  to  be  of  great  value  to  the  student  or  young  lawyer  when  studying 
by  himself,  and,  if  carefully  studied,  cannot  fail  to  give  him  ideas  which  he  could 
get  elsewhere  only  by  long  experience  and  from  hints  found  scattered  through 
many  volumes.  —  Prof.  O.  W.  Aldrich,  of  the  Ohio  State  University. 

Altogether  unique  in  the  way  of  legal  literature.  There  are  very  many  lawyers 
old  in  the  practice  who  will  regret  that  they  were  not  afforded  in  their  student  days 
such  discipline  as  is  suggested  by  this  book ;  and  there  is  no  lawyer  who  cannot 
read  with  profit  its  first  eight  chapters.  —  The  Chicago  Law  Journal. 

Among  the  most  valuable  publications  for  the  use  of  students  which  have 
appeared  in  recent  years.  The  work  abounds  in  fertile  suggestions.  —  The  American 
Law  Register  and  Review. 

It  is  a  valuable  addition  to  the  Law  Students'  Series. —E.  H.  Bennett,  Dean 
School  of  Law,  Boston  University. 

By  the  same  author,  to  accompany  "  The  Study  of  Cases  " :  — 
Cases  for  Analysis.     By  Eugene  Wambaugh,  Professor  in  the  Law 
Department  of  Harvard  University.    Crown  8vo.    Cloth,  $3.00  net. 


Among  the  legal  publications  of  Little,  Brown,  &  Company  are  many 
other  works  particularly  adapted  for  the  use  of  students.  Among  them 
may  be  mentioned:  Kent's  Commentaries  on  American  Law;  Walker's 
Introduction  to  American  Law;  Dwight's  Law  of  Persons  and  Personal 
Property;  Greenleaf  on  Evidence;  Parsons  on  Contracts;  Washburn  on 
Real  Property;  Schouler  on  Personal  Property,  on  Bailments,  and  on 
Domestic  Relations;  Story  on  Equity  Pleading,  and  on  the  Constitution; 
etc.,  etc.    Catalogues  on  application. 


LITTLE,  BROWN,  AND  COMPANY, 

PUBLISHERS, 

254  Washington  Street, 
BOSTON. 

12 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


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(DEC  0  9  1990 

Law  Library  Rec'd. 

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